IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR,PRESIDENT

O R D E R

1. This complaint filed by Mrs.  B.B. Srimathi d/o. Venkatappa, aged 52 years, resident of Madikeri, Kodagu District against Kotak Mahindra General Insurance Co.Ltd, Mumbai with a prayer to direct the opponent to release an amount Rs.4,59,365/- with interest at the rate of 18% per annum the estimated cost of the repair charges of vehicle plus parking charges of Rs.1,12,500/- for 450 days at the rate of Rs.250/- per day.  Apart from that the complainant has claimed Rs.5,000/- towards towing charges and Rs.2,00,000/- as compensation for mental shock, pain and sufferings.

2. The complainant being the owner of vehicle Mahindra Verito D6 bearing registration No.KA 12 Z 4889 had insured it with the opponent vide policy No.100212800 on 29/08/2016 by paying  an amount of Rs.18,315/- premium amount.  The policy was for the period from 27/08/2016 to 26/08/2017.  The said vehicle was met with accident on 28/09/2016 at 6 a.m. on Mysore Madikeri road near Suntikoppa, Kodagu District.  Due to accident the vehicle was damaged and it was shifted to authorized service centre of the opponent at Madikeri.  The authorized surveyor has assessed and estimated the repair cost at Rs.4,59,365/-.

3. It is further averred that on the date of accident the complainant has registered the claim before the opponent and inspite of his request the opponent did not permit the authorized dealer to carryout the repairs.  Lastly on 06/11/2016 the opponent sent a reply to the complainant repudiating the claim on a flimsy grounds stating that she has suppressed the material facts with regard to availing claim amount with the previous insurer.  Hence this complaint.

4.  The opponent after the service of notice put in appearance through its learned counsel and filed written statement admitting that it has issued the insurance policy for Kotak Car Secure Comprehensive Policy against the vehicle bearing No.KA 12 Z 4889 for the period from 27/08/2016 to 26/08/2017 subject to fulfillment of the terms and conditions governing the contract of insurance.  The opponent has issued policy in the name of complainant wherein benefit of no claim bonus was extended based on the given declaration and following the principles of utmost good faith.  The complainant at the time of entering in to contract of insurance with the opponent declared that she has not made any claim in the previous expiring policy entitling to avail benefit of 20% of no claim bonus.  During the claim process it has come to the notice of opponent that there was one claim settled by the previous insurer of the complainant.  Thus the complainant has given false declaration and concealed the material fact with regard to no claim bonus.  In view of the above circumstances, the claim of the complainant becomes in admissible and thereby the opponent has not committed any deficiency of service as alleged in the complaint.

5. The complainant filed her affidavit evidence and got marked exhibits P1 and P2.  On behalf of opponent Mr. Milind V Myakal,  Assistant Vice President filed his affidavit in lieu of evidence and got marked exhibits R1 to R5  documents. 

6. We heard the arguments advanced by learned counsel for the complainant and opponent and in addition to that the complainant’s learned counsel has submitted written arguments.  On hearing the arguments and perusal of the written arguments the points that would arise for determinations are as under.

1. Whether the complainant proves that the act of opponent repudiating her claim is illegal and against the law?

2. To what order?

7. Our findings on the above points is as under;

• Point No.1:- In the Negative
• Point No.2:- As per final order for the below

R E A S O N S

8. Point No.1:- The learned counsel for the complainant vehemently argued that before issuing the policy the opponent has thoroughly inspected vehicle then only issued the policy.  The opponent while issuing the policy has not given deduction with regard to no claim bonus.  The opponent has not produced single piece of paper with regard to taking claim from the previous insurer and no claim bonus given by the opponent.  As against this the learned counsel for the opponent urged that the complainant while taking policy from the opponent has given false declaration that she has not taken claim/ damages from the previous insurer.  In fact the complainant had taken claim from the previous insurer Bajaj Allianz General Insurance Co. Pune.

9. In the case on hand the opponent has not disputed insurance coverage to the complainant vehicle vide exhibit R1 policy which covers the insurance for the ill-fated vehicle from 27/08/2016 to 26/08/2017.  Further the date and place of accident is not disputed by the opponent.  The accident has took place on 28/09/2016 near Suntikoppa Town on Mysore Madikeri road.  Exhibit P1 letter dated 06/11/2016 sent by the opponent to the complainant repudiating the claim on the ground that she has suppressed the fact of claiming damages from the previous insurer and thereby availed the benefit no claim bonus while obtaining exhibit R1 policy.

10.  Exhibits R3 and R5 are material documents to decide the point in dispute.  Exhibit R3 NCB Confirmation letter sent by Bajaj Allianz General Insurance Company to the opponent on 01/10/2016.  It is stated in exhibit R3 that the complainant had insured her vehicle bearing registration No.KA 12 Z 4889 for the period from 14/08/2015 to 13/08/2016.  It is further stated that NCB on their policy was zero but OD claim settled by them during the existing policy period from 14/08/2015 to 13/08/2016.  It is clarified that the complainant is not entitled for no claim bonus due to OD claim.  Exhibit R5 is the proposal form submitted by the complainant to the opponent on 27/08/2016.  On page no.4 of exhibit R5 the complainant mentioned the name and address of the previous insurer as Bajaj Allianz General Insurance Co. for the period from 14/08/2015 to 13/08/2016 and further stated that she has not made any claim in the previous expiring policy.  Exhibit R5 indicates that the complainant has made false declaration to get no claim bonus from the opponent.  The previous insurer under exhibit R3 dated 01/10/2016 clearly stated that the complainant has taken one claim during the policy period from 14/08/2015 to 13/08/2016 in respect of vehicle no. KA 12 Z 4889.  Therefore, in view of exhibits R3 and R5 there is no force in the contention of complainant that the opponent has not produced single piece of paper with regard to taking claim from the previous insurer Bajaj Allianz.  It is admitted fact that the complainant had purchased the said vehicle during the year 2015 and immediately she had insured the said vehicle with Bajaj Allianz for a period of one year.  There after she has insured the said vehicle with the opponent vide exhibit R1 policy.

11. In exhibit R1 the opponent has given 20% no claim bonus a sum of Rs.2,423.48 paisa on the basis of declaration given by complainant vide exhibit R5.  Though there is a 20% rebate in the premium amount the learned counsel for the complainant has vehemently argued that the opponent has not produced single document with regard to giving no claim bonus at the rate of 20%.  The learned counsel for the opponent on the point of misrepresentation or false declaration made by the owner of the vehicle relied upon the decision rendered by the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.4470/2014 dated 02/01/2015 in the case of Inder Pal Rana s/o. Shri Lal Singh v/s National Insurance Company Limited, Chandigarh  it is held that since the consent of the insurance company to the insurance policy which is nothing but a contract between the insurer and the insured was obtained by misrepresentation and fraud, the said contract is voidable at the option of the Insurance Company.  The facts of the above citation and the case on hand are one and the same.  In the above citation the petitioner Inder Pal Rana had taken a policy from the previous insurer ICICI Lombard General Insurance Co.Ltd which was expired on 20^th March, 2011 and while taking insurance policy from the opponent National Insurance Co. Ltd. claimed a no claim  bonus amounting to Rs.3,606/- by making a false declaration that no claim against the vehicle in question had been taken.  When the opponent inquired with the previous insurer ICICI Lombard it was informed that a claim had been taken against the damage of the vehicle.  During the existence of the policy taken from the opponent National Insurance Co.Ltd the petitioner vehicle was met with accident on 19/09/2011 and the opponent has repudiated the claim.  Then the petitioner has approached the District Forum challenging the repudiation of claim as illegal but the District Forum has dismissed the complaint on the ground of false declaration that no claim against the vehicle  in question had been taken.  Being aggrieved by the order of the District Forum the complainant went in appeal before the State Commission where also he did not succeed.  Then the complainant has filed revision petition before the National Commission.  The National Commission upheld the findings recorded by both the Fora holding that the complainant has made false declaration and obtained the policy by misrepresentation and fraud with regard to no claim bonus.  Therefore, above citation is aptly applicable to the case on hand since the facts of the citation and the case on hand are one and the same.  Therefore, the complaint is liable to be dismissed as the complainant has made false declaration before the opponent that she has not claimed damages from the previous insurer as a result the opponent has given 20% no claim bonus.  In the result, we proceed to pass the following ;

O R D E R

1. The complaint filed by Mrs. B.B. Srimathi d/o. Venkatappa fails hence, it is dismissed.
2. In the circumstances of the case parties shall bear their own cost.
3. Furnish copy of order to the complainant and opposite party at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 05^th day of JANUARY, 2019)

                                                      (C.V. MARGOOR)

                                                          PRESIDENT 

                                                     (M.C. DEVAKUMAR)

                                                             MEMBER