ORDER
(Passed this on-28th February, 2017)
Shri Shekhar P. Muley, President.
01. This is a complaint against the Opposite Party, Shriram General Insurance Co. for nor settling repairs bills of the insured vehicle.
02. The complainant is owner of Truck No. CG-04-JA-7978 and it was insured with the O.P. for the period from 13/2/2011 to 12/2/21012. The O.P. took risk of full indemnity during existence of the policy. During existence of policy the Truck met with an accident on 27/5/2011 and sustained damages to its engine and cabin. The incident was reported to the O.P. A surveyor was appointed, who conducted spot inspection and allowed to shift it to a garage for repairs. The truck was towed to a garage in Kamptee. The estimate of Rs. 2,29,000/- was given which was submitted to the O.P. along with claim form and papers on 31/5/2011. Again a surveyor was appointed and after inspection he allowed dismantling of the truck. The truck was dismantled. Its survey was done but did not give consent of assessment. The truck was repaired, for which he incurred Rs.2,14,475/-. The O.P. was asked to do survey and re inspection of the truck. Accordingly it was reinspected and report was submitted to the O.P. However the O.P. failed to settle the claim, which is deficiency in service. Hence, she has claimed Rs.2,14,475/- with compensation and cost.
03. The O.P. filed reply at Ex.9. It is stated that the complainant has suppressed material facts. The complainant had earlier taken policy from National Ins. Co. and had lodged claim with it and received it. Therefore he was not entitled for No Claim Bonus (NCB). But he did not disclose this fact while taking policy from the O.P. and availed 35% NCB. This was breach of policy terms and therefore the claim was rejected. Regarding loss and assessment, it is stated that the surveyor assessed loss at Rs. 20,013/-. It is denied that he incurred expenses of Rs.2,14,475/- and the claim was not settled. The claim was declared as No Claim by letter dt/ 18/8/2011 and was conveyed to him. On these grounds it is urged to dismiss the complaint.
04. Heard Learned counsels for both the parties. Perused documents, affidavit and notes of argument. Upon consideration of the same we record our findings and reasons as under.
FINDINGS AND REASONS
05. The main issue for consideration is whether the complainant had availed any claim under the previous policy from National Insurance Co., and whether she made a wrong declaration before the O.P. at the time of taking fresh policy, in so far as grant of NCB is concerned. Perusal of record reveals that the complainant obtained policy from the O.P. in which Rs.6,057/- as no claim bonus was allowed. The O.P. has filed copy of NCB Confirmation Letter and letter of National Insurance Co to show claim received from earlier insurer by the complainant. In the rejoinder to the W.S. the complainant has not explicitly stated anywhere that he had not obtained any claim from the previous insurer under the previous policy. It is contended, it was the duty of the complainant to state in categorical terms, whether she had taken any previous claim or not.
06. Learned counsel for the complainant contended that no false declaration regarding non receipt of earlier claim was made by the complainant and the O.P. could not place any document to substantiate the argument that the complainant declared before the O.P. or its agent that she has not received any claim from the previous insurer. It is further contended it was the duty of the O.P. to write to the previous insurer within 21 days after granting the insurance cover to verify whether any claim was received by the complainant from previous insurer and if it fails to do so, it amounts to breach of Tariff.
The Ld. counsel for the complainant in support of his above contention relied on two judgments.
- Vijay Somany v/s Reliance General Insurance Co. Ltd. Revision Petition No. 3134/2013 (NC) decided on 13/8/2014
- United India Insurance Co. Ltd/ v/s ET. Trav Aids Pvt. Ltd Revision Petition No. 3263/2007 (NC) decided on 29/6/2016
In both the judgments, facts and issue involved are identical with the facts and issue in the present case and therefore the ratio laid down therein is applicable to the present case. A reference is made to the provisions of GR-27, wherein it is provided that notwithstanding the declaration, the insurer allowing the NCB shall write to the previous insurer calling for confirmation of the entitlement and rate of NCB and the previous insurer shall be obliged to provide the information sought within 30 days of receipt of the letter of inquiry failing which the matter will be treated as a breach of Tariff on the part of previous insurer. Failure of the insurer granting the NCB to write to the previous insurer within 21 days after granting the cover will also constitute a breach of the Tariff.
07. Learned counsel for the complainant argued that as stated in the above provision and particularly the underlined words, it was obligatory on the part of the O.P. to write to previous insurer, seeking confirmation of the entitlement of NCB. We have mentioned earlier that the O.P. did seek confirmation from the previous insurer and the previous insurer has informed to the O.P. of NCB given to the complainant. The O.P. issued the policy on 12/2/2011. Though the confirmation letter was given to the previous insurer, there is no date mentioned in the letter. The O.P. should have filed some document or covering letter to show on what date confirmation letter was given to the previous insurer. The O.P. failed to prove that confirmation letter was given within 21 days from issuance of cover note to the complainant. Therefore, in absence of evidence it will have to be held that confirmation was not asked for within 21 days and it amounts to breach of policy by the O.P.
08. From above discussion it becomes clear that the O.P. failed to prove the complainant had given declaration to the effect that no NCB was received by him from previous insurer and further the O.P. also failed to write to the previous insurer within 21 days from issuance of the policy to get confirmation of NCB. The declaration must be expressly given with signature of the proposer to bind him under the contract. Consequently, repudiation of the claim must be held to be unjustified.
09. Now the question is how much expenses the complainant is entitled to get. He has claimed Rs.2,14,475/- for which bills are produced. As per the surveyor report, the loss is worth only Rs. 20,013/-. The assessment report is not challenged, but it is stated that the surveyor did not give her copy of assessment report. There is huge deference between two assessments. We find that the surveyor has not given any explanation in his report as to why he did not consider the bills of parts. There is mention in the report why the bills were overlooked. It is also a fact that while making a claim, the complainant has not mentioned about salvage and excess clause. Therefore while allowing the claim made by the complainant, we deduct 30% amount from the amount claimed. Hence, the following order.
ORDER
- The complaint is partly allowed.
- The O.P.-M/s Shriram General Insurance Co. is directed to pay a sum of Rs. 1,50,132/- (Rs. One lakh fifty thousand one hundred thirty two only) to the complainant towards repair expenses with 9% p.a. interest from date of repudiation i.e. 18/8/2011
- The OP shall also pay Rs. 10,000/- compensation for mental and physical agony and Rs.3000/- as litigation cost to the complainant.
- The order shall be complied within 30 days from receipt of copy of the order.
5.
