Chandigarh

DF-II

CC/700/2016

Gordahn Lal Kulhari - Complainant(s)

Versus

M/s Tata AIG Insurance Company - Opp.Party(s)

Rakesh K Kaundal Adv.

12 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	700 of 2016
Date  of  Institution	:	01.09.2016
Date   of   Decision	:	12.02.2018

 

 

 

 

Gordhan Lal Kulhari, aged 67 years, s/o Sh.Surja Ram, R/o Village & Post Office Abusar, District Jhunjhunu, Rajasthan 333001       

             …..Complainant

Versus

M/s Tata AIG Insurance Company, 2^nd Floor, SCO 232-234, Sector 34-A, Chandigarh. 

   ….. Opposite Party 

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         MRS.PRITI MALHOTRA             MEMBER

                                                               

 

 

For complainant(s)      : Sh.Rakesh K Kaundal, Advocate

 

For Opposite Party(s)   : Sh.Rajesh Kr.Sharma, Advocate

 

PER PRITI MALHOTRA, MEMBER

 

          Briefly, the case of the complainant is that he got his Truck, make TATA Motors LPT 1109 Model 2012, bearing Regd. No.RJ-18-GA-6154 firstly insured with IFFCIO TOKIO General Insurance Company from 31.12.2012 to 30.12.2013 under ‘Goods Carrying’ Package policy and under that the complainant claimed the accident benefit.  Thereafter, the said vehicle was insured by the present Opposite Party on the basis of previous policy for the period from 31.12.2013 to 30.12.2014 for Insured Declared Value of Rs.9.40 lacs (Ann.C-3). It is averred that unfortunately, the said insured vehicle met with an accident on 22.11.2014 near Khapoli, Police Station, District Raigarh, Maharashtra and the vehicle was totally damaged.  It is averred that the vehicle of the complainant after thoroughly surveyed was declared total loss, resultantly, the complainant lodged a claim with Opposite Party, which was declined for the reason disclosing that own damage section of the policy has been cancelled and only third party damage are covered (Ann.C-5). It is averred further that prior to the repudiation letter, the complainant neither received nor was having knowledge of any letter as alleged in the repudiation letter intimating the alleged cancellation of the own damage section of the policy. It is submitted that after rejection of the claim, the complainant had received the notice/letter from the office of Opposite Party to renew the insurance policy and again on the basis of the details of the previous policy, the Opposite Party renewed the policy and again insured the vehicle on 19.12.2014 knowing fully well that the same had already been declared totally damaged by their own surveyor in Dec., 2014 itself (Ann.C-6 & C-7).   Alleging the said repudiation as illegal and deficiency in service, hence this complaint has been filed. 

 

2]        The Opposite Party has filed reply and while admitting the factual matrix of the case, stated that the complainant got his vehicle Truck No.RJ-18-GA-6154 insured with Opposite Party for the period from 31.12.2013 to 30.12.2014.  It is stated that on the basis of the Declaration made by the complainant, the Opposite Party gave a discount of 20% on the premium for the insurance of the vehicle and the policy was issued subject to terms & conditions. It is also stated that thereafter, the matter was taken up with erstwhile insurer for verification of No Claim Bonus (NCB) as declared by the complainant by sending email dated 17.1.2014 to M/s Iffco Tokio GIV Ltd., which was duly replied on 24.1.2014 disclosing that a claim was reported in the earlier policy (Ann.R-3). Accordingly, for wrong declaration, the benefit under the ‘Own Damage Section’ of the insurance policy was forfeited by the answering insurance company and duly intimated to the complainant vide letter dated 10.2.2014.  It is submitted that after receipt of surveyors report, who assessed the loss to the tune of Rs.8,84,738/- subject to terms of the policy (Ann.R-7), the claim was examined and it was observed that the ‘Own Damage section’ of the policy has already been forfeited and ultimately, the claim was repudiated vide letter dated 11.12.2014 (Ann.R-8). It is also submitted that the complainant had obtained the present policy from the answering Opposite Party with wrong declaration of NCB in order to get wrongful gain under the policy.  It is further submitted that as the benefits under the ‘Own Damage Section’ under the Policy had already stand forfeited, the answering Insurance Company is not liable for indemnifying the complainant.  Pleading no deficiency in service and denying rest of the allegations, the Opposite Party has prayed for dismissal of the complaint.

 

3]       Rejoinder has also been filed by the complainant thereby reiterating the assertions as made in the complaint and controverting that of Opposite Party made in their reply.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

6]       In the present complaint, the repudiation of the claim lodged by the complainant for damaged (insured) vehicle has been challenged.  The only stand of the insurance company pertains to the factum that the complainant while porting/reviving the insurance policy with the Opposite Party has wrongly availed NCB (No Claim Bonus) on the basis of wrong declaration whereas he had already taken the claim from the previous insurer. 

 

7]       At the time of arguments, it has been submitted on behalf of Opposite Party that the said declaration has orally been made by the complainant at the time of availing the policy.  Such submission is contrary to the basic principle of law, which provides that where the terms & conditions of any contract are reduced into writing, then no oral evidence pertaining to the contents of the document can be taken into consideration, unless covered under the exceptions. The policy in question is admittedly a contact entered into between the present parties, which is in black & white, so there is no scope to consider any oral evidence. In such scenario, rejection of the claim on the basis of so called wrong/oral declaration alleged to have been given by the complainant, is totally untenable and unjustified.

 

8]       The Opposite Party also failed to brought forward the proposal form (if any) filled by the complainant containing the alleged declaration despite having been specifically called for to produce the same by filing an application by the complainant to this effect.  The holding back of the said proposal form for the reasons best known to Opposite Party draws an adverse inference against it that no such proposal form was ever filled or no such declaration was every supplied by the complainant while obtaining the policy in question.

         In our considered opinion, the Opposite Party must honour their commitment to indemnify the complainant in case any claim is lodged under the policy in question.  Thus, it cannot be wriggle out from their responsibility to pay the claim, if raised/occurred during the subsistence of the policy.

 

9]       In view of the above discussion, there remains no legal base for the stand of the Opposite Party that they vide letter dated 10.2.2014 had already cancelled the policy of the complainant in respect of ‘Own Damage coverage’ for the reason that the policy in question was obtained by the complainant on the basis of incorrect declaration regarding NCB (No Claim Bonus). Also no evidence in the shape of postal receipt showing the dispatch of the said letter, has been brought forward on record by the Opposite Party to show its bonafide. 

 

10]     From above facts & circumstances of the case we well as findings, it is proved that the claim of the complainant has wrongly been repudiated by the Opposite Party, which amounts to deficiency in service on the part of the Opposite Party. Therefore, the complaint is hereby allowed against the OP with following directions:-

 [a] To pay the claim amount Rs.9,40,000/- [being the IDV (Insured Declared Value) of the vehicle in question to the complainant because the repair liability for the same exceeds 75% of IDV, as reported by Surveyor vide report Ann.R-6 Page-30] along with interest @9% per annum from the date of repudiation i.e. 11.12.2014  (Ann.R-8) till it is paid;

 

[b] To pay an amount of 20,000/- as compensation to the complainant;

 

[c] To pay an amount of 7000/- as litigation expenses. 

 

         This order shall be complied with by the OP within a period of 45 days from the date of receipt of its certified copy, failing which the OP shall also be liable to pay additional compensatory cost of Rs.10,000/- apart from above relief.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned. 

Announced

12^th February, 2018                                                                                                                                                                          Sd/-

(RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

 (PRITI MALHOTRA)

MEMBER