Delhi

New Delhi

CC/689/2013

Ram Dhayan Singh - Complainant(s)

Versus

M/S. The Oriental Insurance Company Ltd. - Opp.Party(s)

14 Jun 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.689/2013

 

Sh.Ram Dhayan Singh,

S/o Sh. Basait Singh,

R/o 39-C, Gali No.4, Laxmi Vihar,

Mohan Garden,  Uttam Nagar,  New Delhi.

                                 ….Complainant

Vs.

 

The Oriental Insurance Co. Ltd.,

Service Centre (DRO-i),

Hansalaya Building, 15,

Barakhamba Road, New Delhi.

 

 Opposite Party

ARUN KUMAR ARYA, PRESIDENT

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 vehicle bearing No.BR-I-AJ-3609.  The complainant got the renewal policy of alleged vehicle with OP Insurance Co which was valid from 18.3.2012 to 17.3.2013 and the premium of Rs.3,548/- was paid against policy No.215500/31/2012/7435. Earlier policy was also insured with the OP vide No.33233/31/2011/7009 w.e.f. 18.3.2011 to 17.3.2012.  On 6.11.2012 at 1.40, the said vehicle met with an accident  at Sonepat(Haryana) and got badly  damaged. An FIR  bearing no.388/12 u/s 279/336/427 IPC dt. 6.11.12, P.S. Sonepat Sadar was registered. 

2.     Further, the complainant filed his claim to the Insurance Co. along with all the necessary documents, OP Co. appointed the surveyor.  The surveyor filed his report and confirmed the estimated repair charges of Rs.82,429/- and the same was also approved by assessor. The OP directed the complainant to carry out the necessary repairs and submitted the claim for payment of the repair charges incurred.  On 31.12.2012, complainant had received a letter by the OP in which it was pointed out the complainant had submitted a claim against the insurance for the earlier period 18.3.2011 -17.3.12 and the same was paid out. It is alleged that at the time of renewal of policy, the complainant also disclosed the earlier claims for damages against the earlier policy.  It was the duty of Insurance officer that in such matters, no further claim bonus under GR 27 of MV Act was given by the Insurance Co.  The complainant has assumed that the same was given after due verification of the previous claim records.  The Insurance Co. wrote letter to give reasons for no claim bonus and sought explanation from the complainant regarding the same and repudiated the genuine claim on this sole ground. Complainant, approached this Forum for redressal of his grievance.

3.     Complaint was contested by the OP. OP denied any deficiency on its part and stated that on receipt of claim intimation, OP Co. processed the claim and came to the conclusion that claim of the complainant was not maintainable as per terms and conditions of the policy.  It was clearly mentioned in the terms and conditions of the policy that the insured has taken the claim in the previous year and suppressed this fact at the time of taking policy from the OP and deliberately availed the no claim bonus, which is in violation of terms and conditions of the policy. It is submitted that  the claim of the complainant was repudiated on the grounds;- “as per the declaration had given that there was no claims reported previous policy.  Declaration is found the policy in respect of Section-I Loss or damaged” to the damaged vehicle will stand forfeited”. It is stated that the complainant has not approached this Forum with clean hands and suppressed the material facts.  It is further stated that the complainant was well aware that the claim is not payable by the OP, moreover, the complainant was harassing the OP.   Prayed for the dismissal of the complaint.

4.     Both the parties have filed their evidence by way of affidavit.  

5.     We have heard arguments advance at the Bar and have perused the record.

6.     It is argued on behalf of OP that the claim was rightly repudiated by OP Insurance Co. as the complainant has availed the NO Claim Bonus(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 he has clearly mentioned to the OP that he has availed the claim in the previous policy  and prayed that the relief claim be granted.

7.     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. The complainant has stated in his complaint that he has already  informed the OP regarding his previous claim for the renewal of the  policy in question to the OP Insurance Co.  The Insurance Co. ought to have verified the same before issuing the renewed policy, which it failed to do so. It is further.r 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, 45% deduction be made out, 22.5% be deducted from the complainant’s claim and 22.5% 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. 

8.     In the present case the complainant has alleged that the total estimate of  repairing was to the tune of Rs.82,429/-.  Complainant has neither  placed on record the estimate for repairing the vehicle in question nor  has  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 have would amounted to Rs.54,625.55p/- on the basis of the estimate provided by the complainant.

9.     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 @ 45%, hence the amount payable to the complainant be reduced in same proportion. 

10.    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”.  

11.    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.54,625.55p/-.  Complainant has failed to place on record any documents justifying the claim of  Rs.82,429/-, 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.54,625.55p/- i.e. assessed by the surveyor.   

12.    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 77.5% of  sum of Rs.54,625.55/-   along with interest @ 9% from the date of filing of complaint i.e. 29.7.2013 till its realization.

ii)      Pay to the complainant a sum of Rs.10,000/- 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. 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 14/06/2019

                                                          

 

(ARUN KUMAR ARYA)

          PRESIDENT

(NIPUR CHANDNA)                                                  (H M VYAS)

       MEMBER                                                                MEMBER