West Bengal

Birbhum

CC/153/2015

SK Matiur Rahaman, S/O Majibar Rahaman - Complainant(s)

Versus

Manager, Cholamandalam Gen INS Co Ltd - Opp.Party(s)

Sanjit Kr Acharya

27 Jun 2018

ORDER

Shri Biswa Nath Konar , President.

            The case of the complainant Sk. Matiure Rahaman, in brief, is that the complainant is the owner of a vehicle being Registration No. WB53N 8445 and the said vehicle was covered with insurance under the O.P No.1 being policy No. 3362/01017671/000/00, IDV of Rs. 6,55,000/- valid from 29.05.2015 to 28.05.2016.

            It is the further case of the complainant that on 28.08.2015 at 2 P.M. the aforesaid vehicle met with an accident at BKTPP under P.S. Sadaipur, Dist. Birbhum and in consequence of the accident the vehicle was damaged and immediately after accident he informed the O.P No.1 Insurance Co. through the O.P No.2.

            It is also the case of the complainant that thereafter the surveyor of the O.P No.1 Insurance Co. examined the vehicle and asked the complainant to submit the claim form and estimate cost of repair of the vehicle and as per instruction of the surveyor the vehicle was repaired and incurred expenses of Rs. 30,000/- for the repairing cost. Thereafter the complainant filed claim application and submitted all the relevant documents, bill, estimate etc.

            It is the further case of the complainant that the O.P Insurance Co. did not consider the claim of the complainant, rather they repudiated the claim through their letter dated 03.11.2015 illegally and arbitrarily and thereby caused deficiency in service and illegal trade practice.

            Hence this case for directing the O.Ps to pay Rs. 30,000/- as insurance claim for damaged vehicle with 14% interest P.A since 28.08.2015 to till realization and to pay Rs 10,000/- as compensation for mental agony and harassment.

            The O.P No.1 M/s. Cholamondalam Gen. Ins. Co. Ltd. has contested the case by filing written version denying all material allegations of the complaint contending inter alia that the case is not maintainable and the complainant has no cause of action to bring this case.

 

            It is the specific case of the O.P No.1 that the Surveyor has assessed net liability of the insured to the tune of Rs. 22835.08p. for damage caused to the insured vehicle after proper inspection of the vehicle. Hence demanding liability of Rs. 30,000/- for repairing charge is not just and proper.

            It is the further case of the O.P No.1 that they have not committed any unfair tread practice as well as deficiency in service and the O.P Insurance Co. has rightly repudiated the claim of the complainant with letter dated 03.11.2015, which act was not illegal or arbitrary.

            Ultimately the O.P No. 1 prayed for dismissal of the case with cost.

            O.P No.2 Bikas Kr. Pal and O.P No.3 Canara Bank. Joshpur Br., Dubrapur, Birbhum, inspite of service of notice have not appeared and contested the case and the case is ultimately heard ex parte against them.

            Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Sk. Matiur Rahaman has been examined as PW1 and cross-examined by O.P No.1. He also filed some documents.

O.P No.1 Insurance Co. has not filed any oral evidence but filed some documents.

Heard argument of both sides.

Point No.1:- Evidently the complainant has insured his vehicle with the O.P No.1 by paying premiums of Rs. 16580/-

            So, the complainant is a consumer U/s 2(1)(d)(ii) of the C.P. Act.

Point No.2:- O.P No.2 has residence and O.P No.3 has branch office within jurisdiction of this Forum.

The total valuation of the case is Rs. 40,000/- with interest which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:- Both points are taken up together for convenience of discussion as they are related to each other.

            The complainant in his complaint and evidence stated that the complainant is the owner of a vehicle being Registration No. WB53N 8445 and the said vehicle was covered with insurance under the O.P No.1 being policy No. 3362/01017671/000/00, IDV of Rs. 6,55,000/- valid from 29.05.2015 to 28.05.2016.

 

            Copy of the Registration certificate issued by RTA Birbhum shows that the vehicle in question i.e. WB54N 8445 has been duly registered in the name of the complainant Sk. Matiure Rahaman.

            Copy of the policy certificate shows that the vehicle in question was covered under insurance of the O.P No.1 for the period 29.05.2015 to 28.05.2016 on payment of premium of Rs. 16580/-.

            Copy of the proposal forms show that the complainant applied for insurance of his vehicle by filing such forms.

            The complainant further stated that that on 28.08.2015 at 2 P.M. the aforesaid vehicle met with an accident at BKTPP under P.S. Sadaipur, Dist. Birbhum and in consequence of the accident the vehicle was damaged and immediately after accident he informed the O.P No.1 Insurance Co. through the O.P No.2.            Thereafter the surveyor of the O.P No.1 Insurance Co. examined the vehicle and asked the complainant to submit the claim form and estimate cost of repaired of the vehicle and as per instruction of the surveyor the vehicle was repair and incurred expenses of Rs. 30,000/- for the repairing cost. Thereafter the complainant filed claim application and submitted all the relevant documents, bill, estimate etc.

            Copy of the estimate issued by Hyundai dated 10.03.2015 shows that estimate of Rs. 30765/- was issued by said service centre in respect of the Vehicle No. WB54N/8445.

            Copy of the claim application shows that the complainant submitted claim application in respect of the vehicle in question.

            So, in view of above made discussion it is clear that the complainant is owner of the vehicle No. WB54N/8445 and the same was under coverage of valid insurance under the O.P No.1 at the relevant time of accident and the said vehicle met an accident on 28.08.2015.

            We find that it is the specific case of the O.P No.1 that at the time of insurance of the policy a declaration on no claim bonus was submitted by the complainant, wherein it was specifically stated that no claim had arisen under the previous policy and further he agreed and undertook to waive all the benefits under the policy, if the declaration was found to be incorrect. But on enquiry it was found that a claim was lodged by him under the previous policy rendering his declaration false, which amounts to serious breach to the policy condition as well as the principal of utmost good faith and ultimately the claim of the complainant was repudiated by O.P No.1 by sending letter dated 03.11.2015.

            But the complainant has challenged the decision of repudiation of his claim as illegal and arbitrary.

            We find that the complainant Sk. Matiure Rahaman as PW1 by filing evidence on oath claim that at the time of purchase of the policy the complainant disclose before the Agent O.P No.2 that he took claim in previous policy.  Inspite of that after calculation the Agent asked him to deposit Rs. 16721/- on demand draft after 45% discount. Accordingly the complainant deposited Rs. 16721/- on demand draft and thereafter O.P No.1 Insurance Co. issued the policy with 32% discount and NCD 20% discount. That thereafter the complainant asked the O.P No.2 as he got the previous claim and disclose the same to the O.P No.2 why 20% NCD discount has been given. But the O.P No.2 replied that in IIB Portal it is found no claim record against his vehicle for last 5years,. So more premium without NCD 20% discount could not be taken.

            We find from the copy of the IIB Portal in respect of the vehicle in question that there is clear note that “no claim record found for this vehicle during the last 5years.”

            So, we find that there is some truth in respect of the evidence of the complainant/PW1 in this regard.

            We further find that in the present case complainant/ PW1 has filed evidence on affidavit but he was not cross examined regarding his allegation against O.P No.2 Bikas Ch. Pal, Agent of the O.P No.1, who allegedly misguided him and just a suggestion was given to him denying such allegation.

            O.P No.2 Bikas Kr. Pal Agent of the O.P No.1 Insurance Co. has also not come forward to deny the allegation of the complainant.

The O.P No.1 also has not filed any evidence denying such allegation of the complainant.

In view of the ruling reported in IV2006CPJ 2013(NC) wherein a complaint case the complainant filed an affidavit by way of evidence but the O.Ps neither filed any evidence by way of affidavit nor cross examined the deponent. Hon’ble National Commission pleased to hold that allegation of the complainant remained uncontroverted and in absence of any counter affidavit case of the complainant stands prove.

Considering overall matter into consideration and evidence on record we are constrained to hold that O.P No.2 Bikas Kr. Pal, Agent of the O.P No.1 Insurance Co., misguided the complainant at the time of taking of policy and the complainant has not suppressed anything willfully.

During hearing of the argument Ld. Advocate/Agent of the complainant submitted that it was the duty of the O.P No.1 Insurance Co. to write the previous insurance Co. within 21 days of granting issuance coverage to confirm entitlement of “no claim bonus” by the complainant. But the O.P Insurance Co. has not complied with such obligation.

In support of his contention he cited a ruling reported in IV(2015) CPJ 10B(CN), where in a claim case the claim was repudiated on the ground that the claimant gave false declaration in respect of “no claim bonus”. Dist. Forum dismissed the case.

On appeal Hon’ble State Commission Rajasthan has been pleased to allow the Appeal observing that repudiation was not justified as Insurance Co. had not written to previous insurer and conformed entitlement of “no claim bonus”, while it was obligation for the Insurance Co. under GR27 of the provision to right to previous insurer within 21 days of granting cover and previous insurer was obliged to furnish within 30 days of receipt of letter.

We further find that in the present case Surveyor of the O.P No.1Insuarnce Co. has assessed net liability of the insured to the tune of Rs. 22835.08p. for damage caused to the vehicle in question after proper inspection.

It is the settle law that unless there are sufficient grounds to make departure from report of Surveyor same should not be discarded.

In this context reliance may be placed upon the ruling reported in 2015(2)CPR page 459(NC).

Considering overall matter into consideration and materials on record and in view of the ruling citied above, we think report of the Surveyor is to be accepted and to assess the liability of the O.P No.1 at Rs. 22835/-.

In this juncture we are constrained to hold that the complainant has been able to prove his case of illegal repudiation of his claim and he is entitled to get Rs. 22835/- as insurance claim for damage vehicle with 6% interest P.A. from 28.08.2015 to till realization and he is also entitled to get Rs. 2000/- as compensation for causing mental agony and harassment.

We find that in the present case there is no claim against O.P No.2 and O.P No.3.

Accordingly the case is liable to be dismissed against them.

Thus these points are decided in favour of the complainant. Case succeeds in part.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 153/2015 be and the same is allowed on contest against the O.P No.1 with a cost of Rs. 2000/- and dismissed on ex parte  against O.P No.2 and O.P No.3 without any cost.

            The O.P No.1 Cholamandalam Gen. Ins. Co. Ltd is directed to pay Rs. 22835/- as insurance claim for damage vehicle with 6% interest P.A. from 28.08.2015 to till realization and to pay Rs. 2000/- as compensation for causing mental agony and harassment to the complainant.

            All such payment should be made by the O.P No.1 to the complainant within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and proceeding.

Copy of this order be supplied to the parties each free of cost.