Delhi

New Delhi

CC/925/2011

Anil Kathaith - Complainant(s)

Versus

M/S. Iffco Tokio General Insurance Company Ltd. - Opp.Party(s)

25 Mar 2019

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.925/2011

 

 

Sh. Anil Kathaith,

C-2/38, C-2 Block, Gali No.1,

Mahavir Enclave,

New  Delhi-45.

 

                       Vs.

 

 

IFFCO-Tokio General Insurance Co. Ltd.,

IFFCO Sadan, C-1,

Distt. Center, Saket,

New Delhi-110017.

 

 

NIPUR CHANDNA, MEMBER

 

O R D E R

 

 

 

The complainant has filed the present complaint against the OP under section 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant is owner of Tata Indigo LS car  bearing  No.DL-1YB7211 duly insured with OP for a period from 31.07.2010 to  30.07.2011 vide  policy bearing No.1-CY03JW-P400 # 73625873 for an IDV Rs.4,30,000/-.  OP had charged Rs.16027/- as a total Insurance package including risk owner cum driver/4 passengers of the car.

2.     On 11.12.2010, the car in question met with an accident.  The information was given to the OP in this regard. The Insurance claim amounting Rs.4,15060/- for repair of the car in question was lodged vide claim No.1-FRU15S and the same was denied by the OP without any justification and reasons. Complainant, therefore, approached this Forum for redressal of his grievance.

3.     Complaint has been contested by OP.  OP has filed its written statement, wherein it denied any deficiency in services on its part and stated that the claim was rightly repudiated by OP Insurance Co. as the complainant has concealed the fact regarding NCB in the current policy.  The current policy was obtained by him on mis-representation of the facts, hence the repudiation was justified and prayed for the dismissal of present complaint. 

4.     Complainant has filed his evidence by way of affidavit. 

5.     On the other hand Sh. Rajeev Choudhary, Vice President of OP has filed affidavit in evidence testifying all the facts as stated in the written statement. All the parties have also filed their respective written submissions.

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

7.     It is argued on behalf of OP that the claim was rightly repudiated by OP Insurance Co. as the complainant has availed the 20% Bonus on 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. 

8.     It is argued on behalf of complainant that although he has lodged the claim with the previous Insurance Co. but the same was denied vide letter dt. 31.5.10, as no claim was given to him by the previous Insurance Co., he is entitled for NCB in the current policy.  It is further argued on behalf of complainant that the OP is equally liable to ascertain the facts from the previous Insurance Co. regarding the NCB, hence, out of the total claim amount, 20% deduction be made out, 10% be deducted from the complainant’s claim and 10% to be borne  by the Co. as per the judgment of Hon’ble National Commission  titled as Anjani Gupta Vs. Future Generali India Insurance Co. decided on 12.10.2017 in R.P. NO.1051 of 2017. 

9.     We have gone though the judgment cited by the complainant.  In the present case he has alleged that his case is of total loss and he is entitled for the sum assured of Rs.4,15,000/- on account of total loss.  Complainant has placed on record the estimate for repairing the vehicle in question which is to the tune of Rs.4,15,000/- but has not repaired the vehicle in question.  OP Insurance Co. has placed on record the surveyor report as per which the repairing cost of the vehicle in question would amounts to Rs.1,80,713.92/- on the basis of the estimate provided by the complainant.

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 Insurance Co. had not done so, hence, in our view, the complainant is entitled for reimbursement of the loss sustained by him subject of course to proportionate deduction.  Complainant has availed No Claim Bonus @ 20%, 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.    Perusal of the file shows that the  OP Insurance Co. has placed on record the report of the  surveyor, who is independent person appointed by IRDA to investigate and assess the loss suffered by insured. Surveyor had assessed the loss to the tune of Rs.1,80,713.92/-.  Complainant has failed to place on record any documents justifying the claim of Rs.4,15,000/-, he has placed on record, the estimate of the repairs through which we cannot assess the actual loss suffered by him. Hence, we are inclined to hold that the actual loss suffered by the complainant is Rs.1,80,713.92/- i.e. assessed by the surveyor.    

 

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

i).     Pay to the complainant 80% of  sum of Rs.1,80,713.92/-   along with interest @ 9% from the date of filing of complaint i.e. 8.9.2011 till its realization.

ii)      Pay to the complainant a sum of Rs.20,000/- on account of pain and mental agony suffered by him.

ii)      Pay to the complainant a sum of Rs.10,000/- as  litigation cost . 

            

The order shall be complied with 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 25/03/2019 

                                                          

 

 

(ARUN KUMAR ARYA)

          PRESIDENT

 

(NIPUR CHANDNA)                                                  (H M VYAS)

       MEMBER                                                                MEMBER