By Sri. A.A. Vijayan, President.
The complaint is in respect of insurance claim. The averments in the complaint can be summarized as follows.
The complainant had purchased CHEVORLET BEAT LS TCDI car having registration NO.KL-10-AN-2965. He had taken insurance policy of the opposite party also. The complainant is a document writer. On 03-09-2014 while he was returning in the car from his office to house at Mambad a lorry coming from opposite side in a rash and reckless manner dashed against the car of the complainant and without stopping the vehicle Lorry rushed away there from. Thus complainant did not get any details regarding the lorry as well as the driver. In the accident severe damage was caused to the car. Therefore complainant entrusted the vehicle to the showroom at Calicut of German motors, the dealer of Chevorlet Company. The repairing work of the car was carried out paying Rs. 141169.17/-( Rupees One lakh forty one thousand one hundred and sixty nine and seventeen paisa only). Since the complainant had insured the car with opposite party, he submitted claim form before the Insurance Company. But the opposite party rejected the claim on 15-09-2014 intimating the complainant that at the time of renewing the policy the complainant gave wrong declaration. But complainant has never given any wrong declaration to opposite party as alleged. At the time of renewing insurance policy complainant was ignorant of the steps to be taken for renewing the policy , thus he reached the office of the opposite party in the vehicle for renewing the policy and as per the direction of the opposite party their agent scrutinized the documents of the vehicle and without making any query to complainant, the said person filled up the proposal form and then the policy was renewed . The first policy of the vehicle was taken from the company itself and he was taking policy from the opposite party for the first time. The opposite party is liable to pay damages to complainant for repairing the vehicle and they are now trying to escape from their liability. The service rendered by opposite party was deficient and complainant is entitled to compensation from them. The complainant cut a sorry figure before the public due to the deficiency in service of the opposite party and the complainant is entitled to Rs. 50,000/- (Rupees Fifty thousand only) as compensation from the opposite party and Rs. 141169.17/- (Rupees One lakh forty one thousand one hundred and sixty nine and seventeen paisa only) spent by complainant for repairing the vehicle. Complainant is also entitled for the interest on said amount and cost of Rs. 10,000/-(Rupees Ten thousand only).
The opposite party filed version denying the claim of complainant as follows. The complainant had taken a package insurance policy for his vehicle having registration NO.KL-10- AN-2965 for the period from 07-11-2013 to 06-11-2014. The complainant has submitted the proposal form for availing the policy and on the basis of the information provided by him the policy was issued. The complainant made declaration in the proposal form that he has not availed any claim under own damage section from the previous Insurance Company. Believing the declaration of the complainant, the opposite party issued the policy to the complainant allowing 20% `No Claim Bonus’ which is referred as NCB. By availing 20% of NCB the complainant got the policy issued with less premium for the Own Damage Coverage. As a matter of procedure this opposite party has to get confirmation from the previous insurance company regarding the entitlement of the complainant for NCB. On getting confirmation it was noticed that the complainant was not entitled for any bonus (NCB) since he had preferred a claim under the expired policy . Therefore, this opposite party intimated the complainant by a letter dated 28-01-2014, that the benefit under Section I of the Policy and the corresponding premium paid in respect of Own Damage section of the policy are forfeited . It was also informed that the TP coverage will remain in force . The complainant suppressed the above facts in the complaint. Since Contract of Insurance being a contract of Uberrimae fidae (Utmost good faith) , any breach of such good faith would make the contract void ab initio. Since complainant made a willful suppression of material fact by giving a wrong declaration , opposite party got right to forfeit all the benefits under the Own Damage portion in the contract. The complainant has neither responded to the cancellation letter nor challenged the fact noted in the cancellation. Thus, the complainant is not entitled to any relief. The claim put forwarded by the complainant was repudiated by this opposite party by letter dated 15-09-2014. The allegation of the complainant that the proposal form for taking the policy of the opposite party was filled up by their agent is baseless. The claim of complainant that, he is not experienced in taking policy is a lame excuse to conceal his misrepresentation. The complainant is not entitled to any benefit under the policy. Since complainant failed to produce the bills for proving the cost of the repairing, he is not entitled to any amount under that head. There is no deficiency in service or unfair trade practice on the side of the opposite party. Hence complaint is to be dismissed.
Complainant and opposite party filed affidavits and Ext.A1 and A2 and B1 to B5 are marked. Points arise for consideration.
- Whether complainant is entitled to the repairing charges and compensation as claimed.
- Whether complainant had suppressed any material facts while taking the policy of the opposite party.
- Whether the denial of the insurance amount by opposite party is justified.
- Reliefs and cost.
Point No. 1 to 3
Admittedly complainant had availed an insurance policy for his vehicle No KL-10-AN 2965 from opposite party as per Ext. B1 policy. According to complainant on 03-09-2014 in the night while he was coming to his house driving the car, a lorry coming from the opposite side dashed against the car causing severe damage and without stopping the vehicle the lorry run away. Then the car was entrusted to German motors, the dealer of Chevorlet Company for repairing . The cost of repairing was 141169.17/-(Rupees One lakh forty one thousand one hundred and sixty nine and seventeen paisa only). Then complainant preferred a claim before opposite party. There was no dispute regarding the above facts. The claim of complainant was rejected by the opposite party by Ext.B3 letter. The reason for the rejection of the claim was the wrong declaration for no claim bonus. It is alleged by the opposite party, that the complainant has suppressed the fact that , he had availed claim under Own Damage section of the previous insurance policy of previous insurance company and the amount as per that claim had been paid by the company and this fact was suppressed by the complainant , when he submitted application for the policy from the opposite party. According to opposite party the complainant suppressed the fact that he had availed no claim bonus from the previous insurance company on the basis of the policy taken from that company. Hence, on the basis of the suppression of the material fact the opposite party rejected the claim of complainant.
It is to be noted that when the complaint was filed by complainant, though notice was sent to opposite party they failed to appear and complaint was allowed exparte. Then opposite party preferred appeal from that exparte order before Kerala State Consumer Dispute Redressal Commission, Thiruvanathapuram as Appeal NO.259/2015 and that was allowed on cost. Since the cost of Rs. 6,000/-(Rupees Six thousand only) was paid by opposite party, the appeal was allowed and complaint was restored. Then opposite party entered appearance and filed version and in the light of the contentions raised in the version complainant filed additional affidavits . The stand taken by complainant was that the proposal form for taking policy for complainant was filled up by the agent of the opposite party and that person never asked anything to complainant and the form was filled up perusing the documents of the vehicle. This stand is not sufficient to reject the defense of opposite party. Though complainant stated that there is no evidence to prove the suppression of materials facts , complainant did not specifically reveal either the fact that he has not claimed any amount from the insurance company or he has never suppressed any material facts in the proposal form. The opposite party produced Ext. B5 the reply received from previous Insurance company named Future Generali India Insurance Company Limited which revealed that a claim had been made for the vehicle of complainant and loss sustained by the owner was settled for an amount of Rs. 2932.60/-(Rupees Two thousand Nine hundred and thirty two and sixty paisa only) on 26-10-2012. The date of loss was 8-10-2012. Ext. B5 is not denied by complainant. Apart from a bald statement in the additional chief affidavit declaring that the allegations leveled by opposite party against him are false, no specific denial is made by complainant. The specific stand taken by opposite party that complainant , after taking an insurance policy for the vehicle previously, had preferred a claim and that was settled and that is not denied by complainant. More over when opposite party alleged that the complainant suppressed the facts seen in Ext. B5 in the proposal form , complainant failed to deny that allegation as well as contents of Ext. B5 . Therefore , we find nothing wrong in holding that complainant failed to establish his entitlement to get the amount claimed by him.
It is also to be noted that though complainant produced Ext. A1 for proving the expenses met by complainant for repairing the vehicle, no convincing documents were produced by him to establish that he had actually spent or paid the amount shown in Ext. A1 to the German Motors. The amount shown in Ext. A1 is an estimated amount. But there is no evidence to prove that the vehicle had been repaired according to Ext. A1 and that amount was paid by him. The non production of documents to prove payment made by complainant and the absence of a valid and reasonable explanation for the evidence of Ext.B5 make the claim of complainant vulnerable . When opposite party challenged the claim of complainant with documents the complainant should have produced convincing evidence or explanation regarding those documents and evidence . In the absence of such evidence, we cannot come to the conclusion that the claim of complainant is genuine. Being complainant, he has got heavy duty to prove his claim with clear evidence . He cannot place burden of proof on the shoulder of opposite party for establishing the claim of the complainant . The vague statements in the complaint as well as in the affidavit of the complainant are not sufficient to establish the claim or to meet the challenge raised by the opposite party. Under these circumstances the only way out is to dismiss the complaint. Points are decided accordingly.
Point No.4
On the basis of the findings on the above points we dismiss the complaint.
Dated this 13th day of November, 2019
A.A.VIJAYAN, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1and A2
Ext.A1 : Estimate of repair charges.
Ext.A2 : Photo copy of the Claim declaration letter issued by opposite party to the
complainant .
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B5
Ext.B1 : Copy of the Certificate of Insurance and Policy Schedule.
Ext. B2 :Letter dated 28/01/2014 issued by opposite party to the complainant.
Ext. B3 : Postal receipt and Repudiation Letter dated 15/9/2014 issued by opposite
party to the complainant.
Ext. B4 : Repair Assessment cum processing sheet/Work order..
Ext. B5 : Photo copy of email conversation.
A.A.VIJAYAN, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
