The Complainant Beda Bratha Roy has filed this case under Section 35 of the Consumer Protection Act 2019 and praying for following reliefs :-

1. Direction against the O.P’s. to pay entire repairing cost worth of Rs. 1,76,276/- (Rupees One Lakh Seventy Six Thousand Two Hundred Seventy Six Only) to the complainant with statutory interest.
2. Direction against the O.P. to pay Rs. 1.50,000/-(Rupees One Lakh Fifty Thousand Only) to the Complainant for deficiency in services by the O.P.
3. Direction against the O.P. to pay the Complainant Rs. 1,00,000/- (Rupees One Lakh Only) on account of mental pain, agony and continuous harassment.
4. Direction upon the O.P. to pay the Complainant Rs. 50,000/- (Rupees Fifty Thousand Only) towards the cost of legal expenses.

The brief fact of the case is that, the complainant is a owner of Ford Ecosport being Registered No. WB74AX8319 which was duly insured by HDFC ERGO General Insurance Company Limited vide Policy No. 2311101180593000001 and the period of Insurance was from 14.03.2022 to 13.03.2023 and the issuance date of the said policy was 11.03.2022 against proposal no. 2311101180593000000.

The complainant has also stated that he received a letter dated 26.03.2022 from the O.P. wherein it was stated that the Policy number submitted by the Complainant does not match with their records available with previous insurer. Therefore, the O.P. requests the Complainant to provide correct Policy Number for processing his application further.

As per query raised by the O.Ps on 26.03.2022, the Complainant forwarded the required documents to the O.P.s for their perusal. The Complainant again received a Private Car Comprehensive Policy with same Policy Number, period of Insurance term and the date of issuance was 02.05.2022. On 13.06.2022 the vehicle of the complainant had met with an accident at Sukna Road near Salbari which was driven by the complainant /  after that accident the Complainant made several calls for road side assistance which was covered under the Complainant Private Car Comprehensive Policy, unfortunately the O.P.s failed to provide the road side assistance / with the help of other people the said damaged vehicle was recovered by the Complainant / the vehicle was send to Donodia Automobile, Matigara, Siliguri for repairing the said damaged vehicle / the Complainant had registered his claim on 14.06.2022 vide claim no. C230022114498/ as per instruction of the O.P’s. the Complainant submitted the entire necessary documents to the O.P’s./ the Complainant  received a letter dated 17.06.2022 issued by the O.P’s disclosing that during verification from previous insurer it was found that the previous year policy was liability only policy not a comprehensive one which was misrepresentation of material facts at the time of proposal of the insurance contract as renewal as comprehensive policy from liability only policy was only possible subject to proper declaration and pre-inspection report. It was further stated, that the observation have lead the O.P’s to conclude that the details furnished by the complainant during obtaining the insurance policy from them amounts to a misrepresentation and material facts and it was a breach of the terms of insurance contract.

By giving intimation to the Complainant the O.P’s. repudiated the policy. It is also case of the Complainant that the O.P’s. without making proper enquiry put an allegation to the Complainant of misrepresentation of the material fact on his part which is quite untrue / the old policy vide no. D004273952 issued by Go Digit General Insurance Ltd. which was valid from 14.03.2021 to 13.03.2022 against query raised by the O.Ps on 26.03.2022 they issued a Private Car Comprehensive Policy with the same policy number, period of Insurance terms, besides date of issuance was 02.05.2022 and the O.P’s. deliberately and intentionally raised false allegations against the Complainant and failed to justify the reason of denial of the claim of the Complainant which was deficiency in service on their part / there was a great deficiency in service and unfair and illegal trade practice of the O.P.s and the Complainant is  entitled to get the relief as prayed for. The Complainant has also stated that the cause of action arose on 17.02.2020 when the O.P’s. had taken a sum of Rs. 12,369/- (Rupees Twelve Thousand Three Hundred Sixty Nine Only) from the Complainant as an Insurance Premium and an agreement was made between Complainant and the O.P’s. Thereafter, on 14.04.2022 when the Complainant registered his claim through call centre vide claim no. C230022114498 and lastly on 17.06.2022 when a letter was issued by the O.P’s. repudiated the claim of the Complainant.

In order to prove the case the Complainant has filed written deposition in chief in the form of an Affidavit. The complainant has also filed some documents along with the Complaint which are stated as follows:-

                        List of Annexure filed by the Complainant  

1. Photo Copy of Registration Certificate of vehicle No- WB 74 AX8319  as Annexure-A.
2.  Photo Copy of Policy Certificate bearing Policy No 2311101180593000001 dated 11/03/2022 as Annexure-B.
3. Photo copy of Letter dated 26/03/2022 as Annexure-C.
4.    Photo Copy of Policy Certificate No 2 3 1 1 1 0 1 1 8 0 5 9 3 0 0 0 0 0 1 dated 02/05/2022    as Annexure-D .
5. Photo Copy Claim Repudiation Letter as Annexure- E.
6. Repair Estimate of Dinodia Automobile, Matigara , Siliguri  as Annexure-F.
7.  Photo Copy of Go Digit Policy as Annexure – G .

Notice was issued from this Commission which was duly served on both the O.Ps. They appeared before this Commission filed Written Version denied all the material allegations of the Complainant and has stated that only to harass the O.Ps. the Complainant has filed this case on some false allegations. Both the O.P’s. have also stated that the Complainant approached the O.P’s. through online portal for renewing insurance for his Ford Ecosport bearing no. WB74AX8319 when proposing for the policy the Complainant represented them with his said vehicle by that time was insured with M/s Go Digit General Insurance Co. Ltd., vide their Policy No. D004273952 for the period from 14.03.2021 to 13.03.2022 and it was represented by the Complainant that his vehicle was covered under Comprehensive  /  Package (OD+TP Cover) insurance policy and is in continuation without any break-in. It is also stated by the O.Ps. that in case of proposal for renewals which are without break- in and without any change in coverages inspection of vehicle is waived off in good faith considering the information and declaration given by proposer before assumption of the risk. The O.Ps have also stated in the Written Version that the Complainant had made a declaration for purchasing the insurance policy from the O.P’s. and based on the information received from Complainant the O.P. had issued Private Car Package Policy bearing number- 2311110180593000000 for Ford Ecosport bearing no. WB74AX8319 for the period from 14.03.2022 to 13.03.2023 subject to the terms and conditions incorporated and to the extent of limits mentioned in the said Policy. It is also stated by the O.P’s. in their Written Version that the Complainant represented the O.Ps. that he had not made any claim with his / her previous insurer and on that basis no Claim Bonus (NCB) benefit @ 35% was granted to the Complainant, on the said policy it was clearly shown that the Complainant had been given NCB @ 35%, the O.P. had never received any query from the Complainant qua the policy and as such conduct of Complainant proves that policy was issued in accordance with his proposal. The O.P. has also stated that the Complainant had lodged a claim with the O.Ps. Insurance Company reporting damaged to his vehicle resulting from an accident held on 13.06.2022, on receipt of the said claim the O.P. Insurance Company immediately deputed an independent IRDA Licensed surveyor to assess the extent of damages and process the claim on merit. Thereafter it was ascertained from the documents received by the O.P. from the Complainant that the previous year policy was a liability only policy but the same was misrepresented by the Complainant as a Comprehensive Package Policy at the time of renewing the policy with the O.P. insurance company by making wrong declarations. It is also stated in the Written Version of the O.P. that the fundamental breach of the policy terms and conditions the O.P. Insurance Company issued Repudiation Letter dt. 17.06.2022 to the Complainant and thereafter cancelled the policy as well vide Notice of Policy Cancellation Letter dt. 22.06.2022. The O.P. has also stated that there was no deficiency in service on the part of the O.P. and the Complainant is not entitled to get any relief as prayed for. By filing the Written Version both the O.P. prays for dismissal of this case. In support of the Written Version the O.P.s have filed some documents as Annexure- ‘R1 to R7’. Those are as follows :-

1. Including Private Car Comprehensive Policy as Annexure-R!,
2. Proposal Form cum Transcript Letter for Private Car Package Policy as Annexure- R2,
3. HDFC ERGO General Insurance Company Limited, Insurance Claim Form as Annexure-R3,
4. Final Survey Report as Annexure-R4,
5. Digit Private Car Policy- Bundled as Annexure-R5,
6. Notice dated 17.06.2022 from HDFC ERGO General Insurance Company Limited as Annexure- R6,
7. Notice of Cancellation dated 22.06.2022 as Annexure-R7.

                                 Points for consideration                  

1. Whether the complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act 2019?
3. Whether there is any deficiency in service on the part of the O.Ps. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of the Complaint?

        Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

 At the time of argument Ld Advocate of the Complainant has stated that , the Complainant has been able to prove the case against the OPs not only through the written deposition in chief filed in the form of an Affidavit but also through the documents which they have filed along with their written Complaint .

             Ld Advocate of the OP has argued that the Complainant has filed this case against both the Ops on some false allegations and only to extort huge amount of Claim amount the Complainant has filed this case . He also argued that by suppressing the actual fact the Complainant took the Insurance Policy and the same was repudiated by the OPs. Ld Advocate of the O.P. during argument submits that, the Complainant had no cause of action to file this case against the O.P. , there was no deficiency in services on the part of the O.P. towards the Complainant and the claim of the Complainant is not admissible as per the terms & conditions of the Policy in question. He further argued that, the O.P. shall have no liability under the Insurance contract as the statements & particulars or declaration of the Complainant in the proposal from or documents were false/ incorrect.

In support of argument Ld. Advocate of the O.P. referred decisions of i) 2016(1) C.P.R. 824 (N.C.), ii) 2015 (4) CPR 258 (N.C), iii) Revision Petition No. 4470 of 2014 (N.C.)

Having heard the Ld Advocate appearing on behalf of the Complainant as well as Ld Advocate of both the OP and on perusal of the Written Complaint, Written Version filed by the OP, Examination in Chief of the parties along with the documents which are Annexed by the Complainant & the OPs it reveals that , the Complainant has claims himself as a consumer as per the provisions of the Consumer Protection Act 2019 and he praying for  relief as per the prayer of his Complaint . On the other hand Ld Advocate of both the OP has claimed that the Complainant was not a consumer as per the provisions of CP Act.

Now let us consider whether the Complainant of this case is a Consumer or not.

As per the bare provisions of the Consumer Protection Act 2019 a Consumer means any person who

(i)   buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Definition of service as under :-

 service means of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news of other information, but does not include the rendering of any service free of charge or under a contract of personal service.

            From the basic provisions of the said Act as well as the documents filed by the Complainant it is clearly proves that the Complainant was a consumer under the OPs.

            From the Annexure-A filed by the complainant it is proved that the vehicle in question bearing no. WB74AX8319 was belonged to the Complainant himself and the Registering Authority, Siliguri M.V. Department duly issued the Certificate of Registration. It is not denied by the O.Ps. that they did not issue Annexure-B for Motor Insurance – Proposal Form cum Transcript Letter for Private Car Package which was issued on 11^th March 2022 for the period of Insurance from 14^th March 2022 to 13^th March 2023. It is also not denied by the O.P.s that they did not receive Rs. 12,369/- (Rupees Twelve Thousand Three Hundred Sixty Nine Only) from the Complainant towards total Premium for the Insurance Policy. It is also admitted fact by both the parties that on 26.03.2022 the O.P. Insurance Company Limited issued a letter in favour of the Complainant requesting for submission of correct previous vehicle Insurance Policy Number. It is also admitted fact that the O.P. HDFC ERGO General Insurance Company Limited issued Annexure-D on 02.05.2022 in favour of the Complainant which was a document of Private Car Comprehensive Policy being the Policy Number as usual for the period of Insurance from 14^th March 2022 to 13^th March 2023. It is not denied by the O.P. Insurance Company that the vehicle of the Complainant had not met with an accident on 13.06.2022. The Complainant by submitting Annexure-F has been able to proved that the repairing cost for damage was evaluated of Rs. 1,76,276/- (Rupees One Lakh Seventy Six Thousand Two Hundred Seventy Six Only). It is not also explained either in the Written Version of the O.P’s. or in their Written Deposition as well as in the Brief Notes of Argument filed by the O.P. as to what prevented them to render Road side Assistance to the Complainant when the vehicle of the Complainant had met with an accident on 13.06.2022 though the Complainant made several calls for getting Road side Assistance from them which was covered under the Private Car Comprehensive Policy. The O.P’s. have also failed to justify as to why they did not pay the repairing cost of Rs. 1,76,276/- (Rupees One Lakh Seventy Six Thousand Two Hundred  Seventy Six Only) to the complainant though the vehicle of the Complainant was having valid /effective Insurance Policy.

            Considering all we are of the view that, the complainant has been able to prove its case against both the O.P’s and he is entitled to get the relief as there was clear deficiency in service by the O.P’s as well as restrictive trade practice .

            The decisions referred above on the side of the O.P’s are not applicable to the facts and circumstances of this case.

Hence it is therefore,                                                                                                       

O R D E R E D

That the instant Case being in No- CC No. 55/2022 be and the same is allowed on contest but in part. Both the O.Ps. are directed to pay a sum of Rs. Rs. 1,76,276/- (Rupees One Lakh Seventy Six Thousand Two Hundred Seventy Six Only) to the Complainant towards repairing cost of the vehicle and both the O.P’s. are also directed to pay a further sum of Rs. 20,000/- (Rupees Twenty Thousand Only) for deficiency in services as well as restrictive trade practices . The O.P’s. are further directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) to the complainant on account of mental pain, agony as well as litigation cost.

Both the O.P.’s are also directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) to the Consumer Legal Aid Account.

Both the O.P’s. are directed to pay the awarded amount to the complainant as well as to the Consumer Legal Aid Account within 1 (one) month from this day , in default they will have to pay @ 12 % interest  p.a. from this date till making payment of the same.

Let a copy of this order be given to parties free of cost.