This complaint coming up before us for hearing on 04-04-2014 in the presence of Sri P.Vijay Kumar, advocate for complainant and of                           Sri G.Srinivasu, Advocate for 1^st & 3^rd opposite party and 2^nd opposite party set exparte upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Smt. T.SUNEETHA , MEMBER

            The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking directions on the opposite parties to pay the claim amount of Rs.71,133/- along with interest @ 24% p.a. from          30-05-13 to 30-07-13 which amounts to Rs.2,845/-,compensation for mental agony of Rs.5,000/- and legal expenses Rs.5,000/-.

2.   In brief the averments of the complaint are these:

          The complainant purchased the car Hundai, i-20 with registration No.AP 07 BD 1359 from the 2^nd opposite party in the year 2011.  The 2^nd opposite party which is having tie-up with 1^st opposite party arranged insurance for the vehicle purchased by the complainant for the year 2011-2012and also for the year 2012-2013 valid upto           29-04-13.  By the date of the expiry of the 2^nd policy issued by the 1^st opposite party the concerned agents were not available at the show room and as such the 2^nd opposite party advised to obtain the insurance policy through the agent of 1^st opposite party.  The agent of the 1^st opposite party after making enquiry about the previous policy and other particulars issued a comprehensive policy bearing              No.OG-14-1802-1801-00000761 for the car in issue with effect from 30-04-13 to 29-04-14 on receiving premium amount of Rs.12,858/-.

        On May, 2013   the car of the complainant was damaged and it was immediately informed to the 1^st opposite party through the 2^nd opposite party and the vehicle was handed over to the 2^nd opposite party for repairs.  The 1^st opposite party appointed surveyor who inspected the vehicle at the 2^nd opposite party show room and submitted his report to the 1^st opposite party.  The complainant paid Rs.71,133/- towards repairs.  The complainant submitted his claim with all the necessary documents like bills etc., to the 1^st opposite party.  The complainant later repeatedly requested the 1^st opposite party to settle the claim.  The 1^st opposite party sent a letter to the complainant dated 31-05-13 alleging that the complainant suppressed his previous claim with the reliance insurance company for damages caused to his vehicle and availed 20% of benefit.  Infact the complainant placed before the agent for the 1^st opposite party all material papers namely previous insurance policy.  The complainant availed insurance policy from the 1^st opposite party as the previous policy issued by the Reliance Insurance Company was expiring and as such in a hurried manner as advised by the 2^nd opposite party.  The agent of the 1^st opposite party obtained the signature of the complainant under blank unfilled proposal form in a hurried manner and received premium cheque.  In this course the complainant was never specifically asked about the previous claims and accordingly no claim bonus benefit was given to the complainant in calculation of the premium to be paid by the complainant.  There is no willful suppression of the material facts on the part of the complainant in obtaining the policy through the agent of the 1^st opposite party.  It is pertinent to note that if no claim bonus was not given to the complainant the additional amount to be paid by the complainant towards the premium was only Rs.2,681/- for which amount the complainant would not have setback to pay who already paid an amount of Rs.12,858/- to the 1^st opposite party.  The agent of the 1^st opposite party had not enlightened the complainant with regard to no claim bonus.  Availing no claim bonus is due to inadvertent mistake but it is not intentional and is not suppression of any material fact to deny the policy amount to the complainant in the occurrence of the risk.

        The complainant addressed a regd.letter dated 26-06-13 explaining the true facts to the 1^st opposite party.  The complainant received a letter dated 09-07-13 from the 1^st opposite party requiring the complainant to pay Rs.2,861/- (NCB amount + Service tax) for making necessary corrections in the policy.  The complainant paid the said amount by way of account payee cheque bearing No.848498 dated 18-07-13 drawn on State Bank of Hyderabad, Kothapet, Guntur and the same was enchased by the 1^st opposite party and issued a receipt dated 19-07-13.  The opposite parties committed deficiency of service by not settling the complainant’s claim for which complainant have undergone trauma.  Therefore, the opposite parties are liable to compensate the complainant.  Hence the complaint.   

3.      Version filed by the 1^st opposite party and adopted by 3^rd opposite party is in brief as follows: 

          The 1^st opposite party appointed licensed independent Surveyor to conduct the survey and accordingly he inspected and conducted the survey and submit his report.  The net loss assessed by the surveyor is Rs.37,500/-

        The complainant willfully and intentionally suppressed the material fact of his previous claim for damages with the Reliance Insurance Company and obtained 20% benefit by way of no claim bonus.

        As per the terms and conditions of the policy, the insured must disclose all material information including the previous claims, but the complainant intentionally suppressed the material fact of his previous claim while submitting the proposal form.  As such the policy issued in favour of the complainant is null and void from its inception.  The complainant paid the NCB amount to the opposite party, after repudiation of claim, so the NCB is applicable only future benefits only.

        The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly constructed to determine the extent of liability of insurer.  The insured cannot claim anything more than what is covered as per the terms and conditions of the insurance policy.  That being so, the insured has also to act strictly in accordance with the statutory limitations and terms of the policy expressly set out.  Therefore there is no deficiency on the part of 1^st opposite party and the complaint is liable to be dismissed.

4.      The 2^nd opposite party was set exparte.

5.      The complainant and 1^st opposite party filed their respective affidavits. Exs.A-1 to A-11 were marked on behalf of the complainant and   Ex.B-1 to B-5 were marked on behalf of 1^st opposite party.

6.   Now the points that arose for consideration in this complaint are:

1. Whether there is any deficiency of service on the part of opposite parties?

1. To what relief?

7.      POINT NO.1: - The complainant’s vehicle accident claim was repudiated by the 1^st opposite party on the ground that the complainant availed no claim bonus of 20% (amounted to Rs.2861/-) suppressing the fact of complainant receiving claim from the previous insurer i.e. Reliance Insurance Company before entering into the present policy.

        The complainant alleged that suppression is not intentional and the agent of 1^st opposite party obtained signatures on unfilled proposal form in a hurried manner and received cheque for Rs.12,858/- after deducting 20% N.C.B. amounting of Rs.2,861/-.  The complainant further alleges that having paid Rs.12,858/- he would not set back for paying the rest of the premium amount i.e., Rs.2,861/-.

        The complainant took policy on 30-04-13 for Rs.4,98,000 for the period 30-04-13 to 29-04-14. The accident for the car took place on 16-05-2013. The accident took place within the policy period.  The Surveyor inspected on the same day and valued the damage for Rs.37,500/- in his report dt.28-05-2013.  There is no dispute regarding the accident.   The 1^st opposite party sent a letter dated

09-07-13 to the complainant requiring the balance amount of premium availed by the complainant as NCB as below :

        Sub:  Recovery of No Claim Discount given on policy No.OG-14-1802-1801-00000761.

* * *

                This is with reference to the above-mentioned Commercial vehicle policy issued by us covering your vehicle no.AP 07BD1359 we regret to inform that 20% NCB has been wrongly claimed while renewing the same.  It is noticed that there was a claim in the previous policy. 

                Under the circumstances we request you to immediately remit an amount of Rs.2861/- (NCB amount + service tax) to make necessary corrections in the policy. 

        We would like to bring to your attention that unless the required balance premium is paid all benefits under the policy will stand forfeited with no liability to refund the premium.  No claims under section 1 of the captioned policy would be entertained.  (i.e.Loss/damages to the insured vehicle within the said period is not covered under the policy)

                Thanking you and request to remit the balance premium immediately to resume the coverage under section 1 of the policy.

                Looking forward for your kind co-operation and remittance of the balance premium immediately. 

In the above matter the 1^st op required remittance of the balance premium amount to resume the coverage of the policy instead of avoiding it.  .

Accordingly the complainant sent a cheque bearing No.848498 dt.18-07-13 for Rs.2,861/- which was received by the 1^st op on              19-07-13.(Ex.A8).

The 1^st opposite party on receipt of the said amount have resumed the policy, but repudiated the claim of the complainant which amounted to deficiency of service. Therefore the 1^st opposite party is liable to pay the claim amount .

The dispute in this case is between the complainant and 1^st & 3^rd opposite parties.  The 2^nd opposite party is the seller of the vehicle and has no connection with the dispute.  It was set exparte.  Therefore the claim against 2^nd opposite party is dismissed.  This point is answered in favour of the complainant.

8.      POINT NO.2:  The 1^st opposite party resumed the policy of the complainant and it is liable to pay the claim to the complainant.  The agent said to have been filled up application form is not aware of previous claim and it is within the special knowledge of the insured/complainant only.  The contention of the complainant regarding earlier claim accident is unintentional cannot be accepted.  The complainant did not whisper anything about surveyor’s report.  Under those circumstances reliance can be placed on surveyor’s report rather than on complainant’s claim.  Hence the complainant is not entitled for any compensation or/and legal expenses from 1^st opposite party.

9.      In the result, the complaint is allowed in part in terms as indicated below :

1.       The 1^st and 3^rd opposite parties are directed to pay claim amount of Rs.37,500/- (Rupees thirty seven thousand five hundred only) to the complaint.

2.       The claim against 2^nd opposite party is dismissed.

The above order shall be complied within a period of six weeks from the date of receipt of this order failing which the amounts ordered in item No.1 shall carry interest @9% p.a.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 26^th day of April, 2014.

Sd/-XXX                       Sd/-XXX                 Sd/-XXX

MEMBER                        MEMBER                       PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:   

                                                                                                     Sd/-XXX

          PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.