Delhi

New Delhi

CC/941/2013

Tarun Kumar - Complainant(s)

Versus

M/S. Future General India Insurance Company Ltd. - Opp.Party(s)

07 Jan 2020

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTRICT NEW DELHI,  M-BLOCK, 1^ST FLOOR,

VIKAS BHAWAN, I.P. ESTATE. NEW DELHI-1100001.

 

C.C.No.941/2013

 

Sh. Tarun Kumar,

C/o Ch. Prem Singh,

R/o D-30E, Dayanand Block,

Shakarpur, Delhi-92.

 

Also at:

 

R/o 434/113, Veer Sarvarkar Block,

Vikas Marg, Shakarpur, Delhi-92.

                               ….Complainant

Vs.

 

1. Future General India  Insurance Co. Ltd.,

          303, 3^rd Floor, Kailash Building,

         Plot No.26, K.G. Marg,

         Connaught Place,

         New Delhi-01.

 

2. HDFC ERGO General Insurance Co. Ltd.,

          Ground Floor, Ambadeep Building-14,

          K.G. Marg, New Delhi-01.

 Opposite Parties

 

NIPUR CHANDNA, MEMBER

O R D E R

 

 

The complainant has filed the present complaint against the OPs under section 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant is the owner of vehicle bearing registration No. DL 13 CA 0355.  The said vehicle was insured with OP-1 vide Insurance Policy No.2011-V1351233-FPV, Cover Note No.A8892507 for the period from 19.8.2011 till midnight of 18.8.2012 for which the complainant paid a sum of Rs.9,799/-  as premium for sum assured of Rs.5 lacs. The above said insurance was further renewed through OP-2 vide policy No.2311200290254100000 for the period from 19.8.2012 to 18.8.2013. 

2.     On 20.7.2013, the said vehicle met with an accident and got damaged badly, hence, on 22.7.2013, the vehicle was handed over to the competent Auto Mobiles Co. for repairing.  On 23.7.2013, the complainant was informed by the above said Co. that the claim in respect of above vehicle could not be registered  with OP-2  as the insurance cover was valid upto midnight on 18.8.2013 has already been expired in June, 2013 as per information provided by  OP-2 to the Automobiles co. Ltd.   Thereafter, the complainant approached to OP-2, where it was informed that insurance policy has already been expired in June 2013, for the reasons ”No claim bonus was sent or given by OP-1 i.e. Insurer of previous Insurance Policy”.  Complainant inquired from OP-1, OP-1 informed him that  it has not sent no claim bonus to OP-2, it was also  informed  that OP-1 converted above said insurance policy from fully insured package policy for a sum of Rs.5 lacs. The  complainant several times visited the office of  OPs but he did  not  get any correct information despite his effort from pillar to post. Having find no other option,  the complainant got the vehicle repaired from the Automobiles Co. and paid a sum of Rs.36,459/-.   Non-settlement of claim of the complainant amounts to  deficiency in services on the part of OPs, hence this complaint.

             

3.     Notices were sent to both the OPs but none appeared on behalf of OPs on 30.5.2014, therefore, they were proceeded with ex-parte vide order dt.19.8.2014 by our predecessor, which was challenged by OPs before Hon’ble State Commission. The Hon’ble State Commission set aside the ex-parte order dated 19/08/2013 passed by this Forum with the direction to take the written version of OP on record and proceed with the matter in accordance with law.

4.     Complaint has been contested by both the OPs.   OP-1 filed it written statement. OP-1 has not disputed that complainant had taken policy referred above for the period of 19.8.2011 to 18.8.2012 midnight subject to various terms and condition of the policy.  The said policy was issued to the complainant giving him NCB discount of 20% as he had declared no claim on his previous policy MC1000275815 issued by Bajaj Allianz GIC  and after confirmation it was found that there were two claims paid by GIC Bajaj to the complainant.  The team of OP-1 sent letters to the complainant for recovery of NCB but no response was received, hence the policy was cancelled on 29.11.2011  and intimation of  same was given to the complainant and a cheque  dt. 14.3.2012 for  a sum of Rs.5625/- after retention of liability premium as required under GR-24 and a letter dt. 19.3.12 was dispatched but  the letter along with cheque was undelivered and return back to Branch Office.  It is stated that the contract of insurance is the contract of uberrimae fidei, hence the complainant was under a duty to disclose the facts before availing  himself of the insurance policy from the OP.  However, the complainant did not disclose the fact that he had made the claim to his previous insurer, hence, the claim is rightly repudiated.  It is further stated that the present complaint be dismissed on this ground.

5.     OP-2 has stated in its reply that  a private car package policy bearing No. 2311200290254100000 was issued by it for the period 19.8.2012 to 18.8.2013  and received a premium of Rs.13,671/- for issuance of policy.  The policy was issued with No Claim Bonus(NCB) of 25% on the declaration submitted the complainant.   On verifying the NCB, it was revealed that the complainant is not entitled to any NCB.  OP-2 issued a letter dt. 24.7.12  to the complainant and requested him to pay the differential premium amount as he was not entitled to NCB discount but the complainant did not pay the same. On non-receipt of differential premium of Rs.2,470/-, OP-2 adjusted the policy period to extent of the premium received.  The policy period was accordingly  shortened and was issued for the period 19.8.12 to 23.6.13, and the same was informed to the complainant accordingly. The policy was   not in force at the time of accident; hence the claim is not payable.

6.     Both the parties have filed their evidences by way of Affidavits.   

7.     We have carefully gone through the record of the case and have heard the submissions of  Ld. Counsels for both the parties.

8.     It is argued on behalf of OP that the claim was rightly repudiated by OP Insurance Co. as the complainant has availed the NCB in the current policy without disclosing the facts that he had availed the claim in the previous year policy.  The current policy was obtained by him on mis-representation of the facts, hence the repudiation was justified.  It is argued on behalf of complainant that in the Proposal Form, he has clearly mentioned to the OP that he has availed the claim in the previous policy  and prayed that the proposal form filled by him be produced by the OP Insurance Co.

9.     Some facts are not denied by the parties such as the Insurance Policy, the accident in question, the only point needs to be considered is that whether the repudiation of the claim of the complainant on the ground of non disclosure of the previous claim by him was justified. The answer to it is negative.

10.    In the present case, the complainant has taken the benefit of No Claim Bonus but it does not means that the OP Co. is not liable to indemnify him for the loss suffered due to accident for which the OP Co. has received the Insurance Premium from him.  The OP Insurance Co. had an opportunity to verify the correctness from the concerned insurer but the OP-2 Insurance Co. has done after a delay.  The accident in question took place on 20.7.2013, OP-2 issued the letter for payment of differential NCB  to the complainant on 24.7.2012 i.e.  after the accident in question and immediately thereafter, shortened the period of insurance arbitrarily,  hence, in our view, the complainant is entitled for reimbursement of the loss sustained by him subject to proportionate deduction.  Complainant has availed No Claim Bonus @ 25%, hence the amount payable to the complainant be reduced in same proportion. 

          

11.    Our view find support from the judgment of Hon’ble National Commission in National Insurance Co. Ltd. Vs. Naresh Kumar decided on 20.2.2017 in which it was held that

a)     “ The cases in which it is established that 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 Claims 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 of No Claim Bonus and paid less premium, the insurance claim would be reduced proportionately.

 

b)     In cases 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 benefit of No Claim Bonus and where the insurer had failed to seek confirmation regarding 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 would not be justified in repudiating insurance claim.  However, because the insured had taken benefit of No Claim Bonus by making false declaration his insurance claim would be reduced proportionately”.  

 

12.    In view of the above discussion and  judgment cited above, we are of the considered opinion that the OP-2 Insurance Co. was not  justified in repudiating the claim. We, therefore hold OP-2  guilty of deficiency of services, and direct it as under:

 

i).     Pay to the complainant 75% of  sum of Rs.36,549/-   along with interest @ 9% from the date of filing of complaint i.e. 23.10.2013 till its realization.

ii)      Pay to the complainant a sum of Rs.5,000/- on account of pain and mental agony suffered by him.

ii)      Pay to the complainant a sum of Rs.5,000/- as  litigation cost . 

            

The order shall be complied within 30 days of the receipt of the copy of the order. If the said amount is not paid by the OP within a period of one month from the date of receipt of this order, the same shall be recovered by the complainant along with simple interest at the rate of 9% per annum from the date of this order till recovery of the said amount. This final order be sent to server (www.confonet.nic.in ). A copy of this order each be sent to both parties free of cost by post. File be consigned to Record Room.

 

Announced in open Forum on 07/01/2020. 

                                                          

 

(ARUN KUMAR ARYA)

          PRESIDENT

(NIPUR CHANDNA)                                                  (H M VYAS)

       MEMBER                                                                MEMBER