CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
UdyogSadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.389/2013
HANUMAN SINGH SHEKHAWAT
S/O KUM SINGH
R/O C-II/143, RAJU PARK,
KHAN PUR, NEW DELHI 110062…..COMPLAINANT
Vs.
M/S. UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD.,
FLAT NO. 514, 5TH FLOOR, SHAKUNTLA BUILDING,
59, NEHRU PLACE,
NEW DELHI 110019 .…..RESPONDENTS
Date of Institution-25.07.2013
Date of Order-
O R D E R
RITU GARODIA-MEMBER
The complaint pertains to deficiency in service on part of OP in rejecting the claim of complainant on the grounds of no claim bonus.
The facts stated in complaint are that the complainant, owner of Maruti Car bearing registration No. DL9CN3273, got his car insured Vide cover Note No. 0001045601 from 7.5.2012 to 6.5.2013. Complainant paid a premium of Rs.4091/- by cheque dated 30.04.2012. The policy was issued with declared value of Rs. 1,26,600/- It is alleged that complainant did not receive the insurance documents.
On 31.08.2012, the complainant went for his daily morning walk at around 7:00 AM. After completing his morning walk around 8:00am, he returned to the parking area and found the car missing. He lodged an FIR on 1.9.2012 at Police Station, Mehrauli. He informed regional transport office about the theft of the car vide letter submitted on 5.9.2013. It is alleged that he informed the OP who told him to wait till the completion of investigation in the said FIR. On 29.9.2012 the investigation officer submitted final untraceable report in the Court of Learned MM, Saket Court.
The complainant submitted all his claim documents including indemnity bond and letter of subrogation to Bhola Associates, the authorized claim investigator. The complainant also sent a letter dated 18.3.2013 to OP through speed post for payment of claim but no response has been received by him till date. Complainant prays that OP pays him the IDV i.e. Rs.1,26,600/- along with interest @18%, compensation and litigation cost to the tune of Rs.2,00,000/- and Rs.25,000/- respectively.
Complainant has filed a copy of these documents registration certificate, insurance cover loan, FIR dated 1.9.2012, vehicle particular issued by transport department, statement of documents submitted to Bhola & Associates, Untraced report, indemnity bond, letter of subrogation and demand letter.
OP in its reply has prayed for dismissal of complaint as the policy was obtained by mis-representation and non-disclosure of facts. It is admitted that the vehicle was insured with OP vide cover note No. 0001045601 from 7.5.2012 to 6.5.2013. OP submits that the vehicle was insured with Bajaj Allianze General Insurance Company. OP alleges that the complainant has submitted in the proposal form that he was entitled to no claim bonus. OP on enquiry found out that a claim has been filed with Bjaj Allianze General Insurance Company. The previous insurer and complainant had availed re-imbursement under that Policy. Hence, OP repudiated the claim vide letter dated 3.4.2013.
OP submits that the complainant was allowed a percentage of discount on the premium on the assumption that complainant is a good driver and no claim has been lodged with earlier insurer. Complainant was given a discount of no claim bonus of 35%. The policy documents were duly sent to the complainant.
OP imputes that the vehicle was left unattended without properly locking the vehicle. OP has denied that all the relevant documents were submitted to the investigators. OP has filed copy of letter dated 3.4.2013 repudiating the claim.
The complainant in its rejoinder has reiterated the contentions made in the complaint. The complainant alleges that as per the normal business practice of Insurance Company, representatives of insurance company procure data of motor vehicle policies which are about to expire and start approaching the insured for renewal at favourable terms. The complainant alleged that he received a telephonic call from agent of OP soliciting purchase of insurance policy of OP for his car. The complainant was in Rajasthan. On that day, the complainant submits that as he is a real estate investment advisory, he leaves some blank singed cheques in the safe custody of his staff. The complainant was told by the agent that he only had to give a copy of previous policy and a cheque for payment of premium and all paper work could be taken care of. The agents of OP collected the cheque and a copy of previous policy and handed over the copy of the cover note the complainants staff. The complainant emphasises that he has not filled or signed the proposal form, cover note or policy document. The no claim bonus was filed by the agent of OP.
The complainant imputes that it was a statutory duty of OP to make enquiry about any claim under previous insurance policy. It is submitted that OPs agent did not even enquire about having availed any claim under the previous insurance policy. In the alternative complainant submits that OP ought to have made enquiries within reasonable time after issuance of cover note and thereafter. OP should have claimed a difference in premium amount on account of no claim bonus.
The complainant has denied receiving any letter dated 3.9.2013. The complainant has also denied that he has left his vehicle unlocked on any occasion or that he has failed to take proper care and reasonable steps to safeguard the vehicle from theft.
The complainant has filed evidence by way of affidavit and has exhibited the following documents:-
- Copy of the Registration Certificate is exhibited as Ex. CW-1/1.
- Copy of the insurance cover note is exhibited as Ex. CW-1/2.
- Copies of invoices are exhibited as Ex. CW-1/3 (Colly).
- True copy of FIR alongwith copy of vehicle particulars issued by State Transport Department are exhibited as Ex.CW-1/4 (Colly).
- Copy of Untraced Report is exhibited as Ex. CW-1/5.
- Copy of Indemnity Bond and letter of subrogation are exhibited as Ex. CW-1/6 (Colly).
- Copy of demand letter dated 18.3.2013, along with Speed Post Receipt is exhibited as Ex. CW-1/7 (Colly).
The OP has filed evidence by way of affidavit and has exhibited the following documents:-
- Copy of insurance policy is exhibited as OPW1/1 (Colly).
- Copy of letter dated 03.04.2013 and Postal Receipt dated 04.04.2013 are exhibited as OPW1/2 (Colly).
Both the parties are filed their written arguments and relied on various judgments. The complainant had filed an application for production of proposal form and the OP has placed the original proposal form and cover not on record.
The Commission has considered the rival contentions and documents on record. It is undisputed that the complainant has taken a policy from OP vide cover note No. 0001045601 running from 7.5.2012 to 6.5.2013. The car was stolen on 31.8.2012 and FIR was registered on 1.9.2012.
OP had appointed an investigator to assess the loss. OP has not denied the theft. Hence, the theft is genuine as admitted by both the parties. OP alleges that the vehicle was left unattended without being properly locked. OP has not adduced any document/ report/ Police report showing that the vehicle was left unattended without being locked.
Perusal of the cover note admitted by both the parties shows that the policy was issued after deduction with no claim bonus of 35%. The proposal form filed by OP reveals that the complainant has signed in Devnagri i.e. Hindi. The cover note and the policy do not have the signature of the insured. Even though, the complainant has not signed the policy or the cover note and the signature of the complainant on proposal form is in a different language, he had never disputed the policy nor raised any objection during the five months before the vehicle was stolen. In fact, the complainant has lodged the claim with OP on the policy in question. The complainant has also not denied lodging and receiving a claim from the previous insurer. Hence, the complainant is estopped from denying the conditions encapsulated in the policy.
The issue for determination is whether the insurance is liable to pay the claim of the Complainant despite the fact that complainant has concealed the fact of having taken claim from the previous insurance and has paid lesser premium on account of wrong declaration or whether the OP was justified in repudiating the claim in toto.
To decide the issue, the provisions of GR 27 of Indian Motor Tariff need to be taken into consideration which deals with NCB of the insured vehicle. As per GR 27 an insured becomes entitled to NCB on the renewal of the policy after the expiry of full duration of 12 months. In the event of insured transferring the insurance from one insurer to another insurer, evidence of the NCB entitlement should be provided either in the form of renewal notice or a letter confirming the NCB entitlement from the previous insurer. In the absence of above two requirements, NCB may be permitted after obtaining a declaration from the insured. Thereafter, the Insurance will be obliged to write to the previous transferee/ insurer within 21 days regarding the NCB who would be obliged to provide the information within 30 days from the receipt of the letter.
Undisputedly, insurance was obtained from the new insurer on 7.5.2012 and the theft took place on 31.8.2012. As per GR 27 of the Indian Motor Tariff the insured can take benefit of no claim bonus, only if he provides the information that he had not taken any claim during the period of previous policy. If the insured does not furnish such information, the Insurance Co. can take a declaration from the insured and then collect information from the previous insurer by writing a letter within 21 days failing which would constitute a breach of the Indian Motor tariff on part of the insurer. In instant case, the Insurance Company has failed to produce any evidence that any declaration was taken from the Complainant at the time of issuing the policy or that any letter was written to the previous insurer within 21 days as required.
Honble National Commission in Anjani Gupta V/s Future General Insurance decided on 12.12.2017 has observed as under:
4. The legal issue involved in this petition is no more res-integra the same having already been decided by a Three-Members Bench of this Commission in RP No.1836 of 2016, Branch Manager, National Insurance Company Ltd. Vs. Naresh Kumar decided on 20.02.2017. The Three-Members Bench took the following view in the above referred matter:
a. The cases in which it is established that the 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 Claim Bonus by exercising ordinary diligence of verifying the truthfulness of the claim from the insurers 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 the insurance claim. However, because the insured had taken benefit of No Claim Bonus by making false declaration his insurance claim would be reduced proportionately.
Thus, it is clear that if no claim bonus is wrongfully/fraudulently taken by the insured, the Complainant is entitled to reimbursement of the loss subject to the proportional reduction in the claim. Since, no claim bonus was availed by the Complainant @ of 35% the amount payable is also reduced by 35%.
Accordingly the Commission is of the opinion that there is deficiency of service on the part of OP in rejecting the claim in toto, and accordingly OP is directed to pay:
- IDV of Rs. 1,26,600/- after deducting 35%.
- To pay interest @ 9% p.a. on the reduced amount from the date of filing claim till realization.
- However in these circumstances no order is passed thereby granting compensation to the complainant, but litigation cost of Rs.10,000/- is awarded.
This order be complied with within 30 days from the date of uploading of the order. Copy of the order be supplied / sent to the parties free of cost as per rules.
File be consigned to Record Room.
