MR. PRAVAT KUMAR PADHI, PRESIDENT :-     

            Complainant has filed C.C.Case No. 2/2024 U/s-35 of C.P.Act, 2019 seeking  following  relief:

          “Hon’ble Commission direct the Ops to pay the claim amount Rs, 35,45,291.67/- or to repair the vehicle bearing Regd. No. OD-33AA-0039   and  pay Rs. 2,20,000/- towards to & fro charges of the vehicle to Mumbai for repairing purpose and also give  compensation of Rs.9,00,000/-  for  mental agony, for  business loss Rs.50,000.00  and Rs.1,00,000/- towards  litigation cost in favour of the Complainant”.

             Brief fact of  the case of the Complainant is that:-

          The complainant purchased a FERRARI PORTOFINO bearing Regd. No. OD-33AA-0039 by taking financial assistance from ICICI Bank Ltd. and availed an insurance policy from Op No. 1 & 2 through authorized broker/agent SALASAR SERVICES INSURANCE BROKERS Pvt. Ltd., Agent Code DB04502 Op No.4 vide Policy No.3001/277142305/00//B00  commencing from 19^th January 2023 13.46 mid night  of 18 Jan-2024  against it’s  vehicle FERRARI PORTOFINO bearing Regd. No. OD-33-AA-0039 with annual premium of Rs.4.29,404/-.On dt. 31.08.2023 at about 10 PM the vehicle of the Complainant met with an accident near Janla Khurda, Odisha  and got under body damage on the rear bumper in the said accident. The incident was reported to the OP Company through email on 1^st Stptembnet-2023 and then the vehicle was shifted to the authorized service centre M/s. Navnit Motors   Pvt. Ltd,  situated at Andheri East, Mumbai 400093 with expense of an amount of Rs.2,20,000/-  (to & fro transportation charges) by the Complainant.The authorized service centre estimated the damaged vehicle and gave an estimate of Rs.35,45,291.67  (Rupees  thirty  five lakh forty five thousand two hundred  ninety one and sixty seven paisa only) .Subsequently on 7^th September -2023 the Motor  claim from along with all required documents was submitted with opposite party office through e-mail, consequently  the   Surveyor/Internal technical person of opposite  party visited the workshop of M/s. Navnit Motors for an inspection of damaged vehicle.When the complainant  and Op No.4 (Insurance broker) followed  up with  OP  No. 1 & 2 to give  “go ahead” in regard to repairing of the damaged vehicle then Op No. 1 & 2 communicated  through email dated  13^th  September-2023  regarding  rejection  of the vehicle  claim with a reason of NCB falsification , because  the complainant  had availed NCB  (No  Claim Bonus of 20% ) from the Op Company.Later on  when the Complainant   made a lot of communication through email with Op  No. 1& 2 against repudiation, surprisingly  on “7^th October-2023 the  Op No. 1 &2  issued a letter  and   an email  as an intimation regarding the  cause   of repudiation/rejection of the vehicle claim and two reasons were given there the first one is of  NCB Falsification” as  stated in Op No. 1&2 email dated  13^th  September-2023 and the second one is that the damage  are too old and accumulated not  matching with date of loss mentioned in the claim Form and try to hide the material fact /misrepresentation of facts  which is false one.

            The Complainant replied to the communications  dated 7^th October-2023  of Op No.1  on  10^th  October-2023  clarifying his stand  as he had no knowledge regarding the  NCB.  Further as  per insurance guidelines the  OP  should have also made an inquiry through  IIB PORTAL prior  to issuance   of insurance  quotation or it  could have been done after issuance of insurance  policy within a stipulated time period by taking written confirmation from TATA AIG or though IIB  portal and intimated  or demanded   the said NCB amount from the complainant  to rectify the policy  if any and that should have been also done  within stipulate time period which the  Ops  have not done. Further  as  far as  old and accumulated damage    is concerned it  is an  afterthought plea  to reject the vehicle claim and it was not there in the       e-mail  dated 13^th  September-2023.

            The Authorized  Service  Centre M/s. Navnit  Motors  has given  mail to the Complainant  stating that  the reason of “ old  and accumulated damage”  is  wrong as  they have  made it clear that on 10^th May  2023  the vehicle  had visited  their workshop for warranty  related works  and during that time  there was no under body damage on the  rear bumper”, hence raising   this issue at the time of settlement of any claim is wrong and lead to deficiency in service as intentionally the Ops have cheated the Complainant and not settling the claim of the Complainant.It is pertinent to mention here that  it is a settled  position of law that due to   NCB   falsification no claim  can be rejected and it is confirmed by Hon’ble National Commission in Revision Petition No-151 of 2017 Anjali Gupta  Vs Future Generally India  Insurance    Company decided on 12.12.2017 the Honble National Commission  New Delhi  has relied  on the  cite case  law, which is as under-

           “The legal issue involved in this Petition is no more res-integra  the same having been already decided by a  Three-Members  Bench of the Commission  in RP No.1836 of  2016 Branch Manager, National Insurance Company Ltd. Vrs Naresh Kumar decided  on 20.02. 2017”. The Three-Members Bench took the following  view in the above referred matter:-

“The cases in which it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and the Insurer First Appeal No.194/2014  had means  to verify the correctness of the declaration of the Insured  seeking No Claim Bonus by  exercising   ordinary  diligence  of  verifying  the truthfulness of the claim from the Insurer’s own record. Exception to 19 of Indian Contract Act would  come into play and the insurer would not be justified in repudiating the insurance claim on the ground of misrepresentation or concealment of fact. However , because  the insured  had taken benefit to  No Claim Bonus  and paid less premium  the insurance  claim would be reduced proportionately?.

In view of the   above cited law it is crystal clear that the claim cannot be rejected on the ground of NCB falsification and in the worst case the No Claim Bonus  which is availed  by the Insured  would be deducted  and rest amount would be settled  against the claim and in this case the repudiation of the claim  totally on the ground  of NCB falsification is totally   wrong and miscarriage of  law. Further on 18^th October-2023 the Complainant  has sent an email to Op No.1 &2   where  it is again followed up to send the  NCB recovery letter which the Op No.1 & 2 had said to share in it’s  email date 7^th  October-2023. Further on 19^th October-2023 the Op No.4 had given the Op No.1 & 2  an e-mail where the two reasons of repudiation  of the claim has been given to falsify  the reason for repudiation. And for this reason the vehicle could not be repaired and due to long time parking of vehicle at the service centre point M/s. Navnit  Motors suggested  to take back the vehicle and the Complainant was constrained to take back the vehicle  with an expense of Rs.2,20,000/- towards “ to & fro”  transportation  charges.

1. It was  the duty  of an Insurance Company to check every point before the Issuance of motor Insurance policy, if not done it could have been done within  stipulated time period after issuance of motor  Insurance policy.
2. Before issue/acceptance of the Insurance policy, the Ops  have inspected  thoroughly checked  the said vehicle by taking so many photographs and other technical check up by a technical person due to gap of insurance   validity by Op No.1
3. The plea of “ Old & accumulated  damage” taken by Op  is  an after thought  because  apparently it is false one and that   has  been confirmed by the authorized service  centre M/s.  Navnit Motors, Mumbai  that the vehicle had visited their workshop on 10^th  May -2023  for warrant  related  works and at that time the  under body damage in the rear bumbler  was not observed  hence Ops  have taken a false  plea  to repudiate the claim intentionally.
4.  In first  instance  causally the  mail dated 13^th Septmebr-2023  has  been given regarding NCB falsification/violation  regarding rejection reason of the claim and then on 7^th October-2023  the second reason “ Old and accumulated damage”  is given which is not  tenable in the eyes of law and shows the slip  shod  attitude which is not accepted  from such a highly reputed company.
5. The Surveyor of OP  No.1 &2   had visited  the workshop of M/s.Navnit Motors at Mumbai  (OP No.-1)  and then the mail dated 13^th September-2023  was sent  regarding rejection of the claim due to NCB  violation ground  only and if the finding was regarding “ Old  accumulated damage”. It should have been mentioned  in that e-mail  dt. 13.09.2023 only  and the Op cannot   sent different  communications  regarding rejection/repudiation of the claim in  piece meal  as per their sweet will accumulating false reason of “claim  repudiation”.

                 Law  is well settled that if the insured has given or not given  declaration regarding  NCB  then it is the duty of the insurer to check the correctness  of the said declaration within the stipulated  time period provided  in GR 27 of Indian Motor Tariff  which the Ops  have failed to do so and  it is clear with bare regarding of  e-mail dated 7^th October-2023  sent by Op No.1 & 2  where it is stated that the complainant would receive repudiation letter and NCB  recovery letter  in a couple  of working  days, and accordingly the  repudiation letter is received  by the complainant through mail dated 7^th October-2023  but the  NCB  recovery  letter was not  received. This shows   that  Ops  also admit that NCB  recovery letter should  have been issued within a stipulated  time period after due check up at their end, but it was not done at their end for which they had agreed  to send the NCB  recovery  letter to complainant,.

                In view of the above it is evident  that Ops  have made   gross negligence  in customer  service  and have violated the law and  guidelines and have taken false  plea  of rejection of the insurance claim of the complainant which is illegal in nature and further the  settled law  says if the NCB  has been availed in current  policy then the claim should not be rejected on the same ground  and as NCB recovery letter is not issued to the complainant within  stipulated  time period, the obligation remains at the end of the Ops to settle   the claim entirely and in worst    case if it is  considered  that  complainant  has not declared the NCB, the Insurance Company has to pay the estimated amount towards  repairing by deducting the amount which has/had  been given  in the current policy towards NCB,   Hence we  held the rejection of the vehicle  claim as illegal and  orthodox.

               The Complainant wanted to give  a final opportunity to the Ops and sent an advocate notice on 23th November-2023  and called upon the Ops to settle the claim of Rs.35,45,291.67  along with   “to and fro” transportation charged  of Rs.2,20,000/- which  has been paid by the complainant for the said accident  damaged  vehicle within 15 days  from the date of receipt of  notice. Though the notice was served on 29^th November-2023  with Op No.1 and on dt. 28^th    November-2023  with Op No. 2  and Op No-3, but all the Ops remained silent  with deaf ear and did not settle the insurance claim, hence  finding no other option  the complainant has come to this   Commission  seeking relief towards  settlements  of claim along with compensation and litigation cost.

               Ops have filed the written version  stating as under;-

              There is no deficiency  in service  on the part of the Ops. An act of repudiation of a claim after considering all the materials and the relevant facts can by no stretch be termed as “deficiency   in service” on the part of the Ops.  The  question  as to what specific acts  of an Insurance  Company  would  amount to deficiency of service  by  the Insurance  Company, when   does the limit of such   deficiency in service  end and when the limits  of an inquiry  into facts and evidence   asking to that of a Civil Court  commence. Hon”ble  Supreme Court  on the test to be applied is found in the judgment of Ravneret Singh Bagga Vs. KLM  Royal Dutch Airlines   (2000)  I  SCC  66  where  the Hon’ble Supreme  Court  laid down that the test of deficiency in service  lay in the complainant  proving  that there was some fault, imperfection, shortcoming or  inadequacy in the manner of the Insurance Company  and further  such fault etc.  must be willful. More importantly   Hon’ble   Supreme Court  has held that where  there is a bonafide dispute between  parties  and where the service  provider has after considering all the materials with the relevant  facts  has  acted in a particular  manner, then  such acts will not amount  to deficiency in service. Thus as there is no ‘deficient in service’  on the part of respondents the C.C is liable to be dismissed on this ground  alone. Hon’ble National Consumer Disputes Redressal Commission has followed the said law on number of occasions.Undisputed fact of the case Ops have issued Insurance Policy No. 3001/277142305/00//B00  against vehicle (Car No. OD-33AA-0039) valid from 19.01.2023 to 19.01.2024 subject to certain term and conditions .

              As per  Complainant  on 31.08.2023  at  10 PM  the said vehicle met with an accident near Janla,  Khorda,  Odisha got under body damage  on rear bumper  and was shifted to  authorized  service  centre M/s. Navneet  Motors Pvt. Ltd, Mumbai on 05.09.2023. The Op  appointed duly licensed Surveyor Harprit  Singh Bright  and he surveyed  the accident  vehicle and stated in his survey report that on 27.09.2023 . He has  visited Navneet Motors and done survey  in the said claim and stated in his report that there is NCB  violation and  damage are old accumulated in nature  and recommended  to close   the file   and treat the   claim  as  “NO CLAIM” and finally assessed amount for the said vehicle is Rs.0/- (Zero) on the ground.

              It has been found as per proposed form that claimant claim 20%   of no claim bonus(NCB) and declared that there was no claim against previous  policy (Ms  TATA AIG GTC LTD)  and claim  damage  are too old and accumulated and not matching  with date of  loss mention  in  the claim from and try to  hide the material fact misrepresentation of the fact. The answering Op strongly denies  that there has been any negligence, deficiency in service  or restrictive trade practice on the part of the Op. The   claimed amount is too high, excessive, speculative and baseless and has been made to gain   wrongfully to which   the complainant is not entitled in the facts and circumstances of the case and hence this case is liable to be dismissed. The answering OP is neither liable to pay any claim amount nor any interest in this case to the complainant. The  Ops  have  repudiated  the claim on the ground that, there is NCB falsification, as insured  had claimed, “No claim bonus”,  in his last  year Policy  with TATA AIG and took 20%  NCB  (No claim Bonus)  benefit  in current policy, hence  subject vehicle  claim is not   admissible. Further the Ops  in their written version have stated that the claim petition is frivolous and untenable under the law, as such should be dismissed on merit. The complainant has no cause of action for the instant case and the same may be  dismissal. The present case is false, frivolous and baseless allegations upon which no reliance   can be or should be placed either in fact or in law. The Complainant may  be  asked to adduce factual and legally acceptable evidences to establish without any ambiguity that the  case of the alleged loss falls within the terms and conditions of the policy issued by the Ops.

             The counsel  for complainant  has relied on the decision  of NCDRC  in the case  of Anjali   Gupta  Vrs. Future  Generally India Insurance, where in  Hon’ble NCDRC has held as  under-                                                                                                              

            “ The complainant was resisted by the insurer primarily on the ground that the complainant has played in fraud upon it by obtained a No  Claim Bonus  which was not legally admissible to him, he already having taken a claim in the previous year in respect of the same vehicle.

              The District Forum, vide  its order dated  17.03.2016, allowed  the claim and directed the insurer  to pay sum of Rs.4,367,557.75 to the complainant. Being  aggrieved from the order passed by the District Forum  the insurer approached  the concerned State Commission by way of an appeal. Vide impugned order dated 03.02.2017, the State Commission allowed the appeal and consequently dismissed the complaint. Being aggrieved from the dismissal of the complaint, the petitioner/complainant is before this Commission by way of this revision petition.

            The legal issue involved in this petition is no more res-integra  the same having already been decided  by Three Members  Bench  of this commission in   R.P.No. 1836 of 2016. Branch Manager, National Insurance Company Ltd. Vrs Naresh Kumar decided on 20.02.2017.The Three Members Bench    took the following view in the above referred matter.

1.  The  cases in which it is established  that the Insured by making wrongful  declaration  has taken benefit of No Claim Bonus  and the insurer had means to verify   the correctness  of the declaration of the insured  seeking  No Claim bonus by  exercising  ordinary  diligence of verifying this truthfulness of the claim from the insurer’s  own  record,  Exception  to 19 of Indian Contract Act  would come into play.  The insurer would not be   justified  in  repudiating the insurance claim on the   ground of misrepresentation  or concealment of act.  However because   the insured   had taken  benefit of Non Claim Bonus and paid less premium, the insurance claim would be reduced proportionately.
2. In case of the insured taking the insurance policy of the vehicle from new  insurance company and it is established that the insured by making wrongful declaration has taken correctness of the declaration submitted by  the insured  in support of plea for no claim Bonus within the stipulated period as provided in   GR 27 of Indian Motor Tariff, the  insurer wouldnot be justified in repudiating the insurance claim. However  because the insured had taken benefit of No Claim Bonus  by  making false declaration his insurance claim would be reduced proportionately.

                  It would therefore be seen that if “No Claim bonus” is wrongfully taken by the insured, the claim would still be payable on a non-standard basis, if the insurer  had the means to verily the correctness  of the declaration made by the insured while claiming the No  Claim, Bonus  .In the present   case also, the respondent had an opportunity  to verify   the correctness or otherwise of the declaration made by the petitioner/complainant  by making necessary enquiry from the concerned insurer which having not been done for which the complainant is entitled to reimbursement of the loss sustained by him, subject to course to proportionate deduction. Since the No Claim Bonus was availed by the complainant @ 25%, the amount payable to the complainant/petitioner has to be reduced in the same proportion”.

                                                            O R D E R

                    We therefore accept the  citation  of NCDRC   and  held that  repudiating the claim  on the ground of NCB falsification  is  not    justified   and correct and direct the Ops to  bear & pay the entire  cost of Rs. 35,45,291/- as estimated by Authorized Service Centre, We also award cost of Rs.1,00,000/- (Rs. One Lakh) for harassment, mental agony, loss of comfort & business etc. and Rs.20,000/- (twenty thousand) towards  cost of litigation along with Rs.4,40,000/- ( Rs.2,20,000/- the cost of transpiration already paid by Complainant & Rs. 2,20,000/- to be paid in further transportation to Authorized Service Centre). If the Ops fail to carry out the order within 45 days, then Ops shall pay Rs. 1000/- per day after 45 days of passing of this order.

                  With the aforesaid observation and direction the C.C.Case No.2/2024 is allowed and accordingly disposed off.  

                         Issue extract of the order to the parties for compliance.   

              Pronounced in the open Commission, on this the  2^nd   day of  July,2024.

                  I, agree,

                    Sd/-                                                Sd/-

              MEMBER                                     PRESIDENT