DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.107/12
G.K. Ashokan
402, Ashadeep (CGHS)
Sector-21D
Faridabad, Haryana. …Complainant
VERSUS
National Insurance Company Ltd.
G-11, Hauz Khas Market
Yousuf Sarai, New Delhi.
Through Sr. Branch Manager …Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution : 19.03.2012
Date of Order : 09.03.2023
Sh. U.K. Tyagi, Member
Complainant has made a request to pass an award directing the National Insurance Co. Ltd. (hereinafter referred to as OP) (i) to reimburse the amount of Rs. 5 Lakhs alongwith 24% interest till the date of payment; (ii) (a) compensation for deficiency in service for mental agony and pain – Rs.2 Lakhs (b) Advocates’ fees and costs of Rs.40,000/- etc.
Brief facts of the case are as under:-
Maruti SX4 2X1 vehicle No. DL 3C AZ 2190 was registered in the name of M/s HCL Commet Ltd. originally and insured with National Insurance Company Ltd. vide valid policy from 07.11.2009 to 06.11.2010 for the insured value of Rs.5,00,000/-. The said vehicle was bought thereafter by the complainant and the said vehicle was endorsed in his name by OP on 02.03.2010. On 05.03.2010 at about 11 PM, the driver of the said vehicle was travelling from Delhi to Bombay and on 06.03.2010 at about 11.00AM when the vehicle reached near tall gate at Bicchi Wara, Dungarpur (Raj), a cow abruptly came in front of the said vehicle on road, the driver suddenly, applied brake to stop the car which unfortunately resulted in a major accident as said car turned turtle and was substantially damaged. However, the driver of the said vehicle escaped unhurt without major injury. The said accident was communicated to the Police at P.S. Bicchiwara, Distt. Dungarpur on the same day without any delay. The police registered Rapat No.319 at 08.15AM on 07.03.2010. The same is found enclosed as Annexure C-4. The complainant informed the Manager of the OP situated at Udaipur about the said accident vide letter dated 08.03.2010 thereby requesting him to depute his surveyor. OP appointed Shri Vinod Kr. Tak as surveyor. On the instruction of surveyor, the damaged vehicle was brought from Bicchiwara to Faridabad (HR) at TCS Auto World Co. – an authorized service centre of Maruti through crane on 11.03.2010. The complainant filed the claim on the completion of survey. The said authorized service centre estimated loss of Rs.8,00,000/- on 14.03.2010 i.e. total loss of the vehicle. The OP vide its letter dated 29.06.2010 stated that from the photographs it appeared that it being a major accident, the driver must have been injured if the driver was injured, then the treatment bill be submitted etc. To this, the counsel for complainant replied vide letter dated 06.07.2010, although it was a major accident but due to opening of air-bags, the driver did not suffered major injury, therefore, no medical bill was necessiated. On the receipt of the reply, the OP repudiated the claim vide letter dated 29.07.2010 on the plea that condition 1 of the policy for immediate information was not complied with and further alleged that the said accident had happened on 22.02.2010 but as per claim form, the accident has been shown on 06.03.2010. Investigation report reflects the date of accident as 22.02.2010.
The allegations of the OP was totally wrong as the said vehicle was insured for the period from 07.11.2009 to mid night of 06.11.2010. Hence complainant would not have any extra benefit on any date as on both the dates, vehicle stood insured. The application of complainant was also rejected on technical ground being not filed by original owner.
OP on the other hand, filed its reply interalia raised some preliminary objections. The insured is duly bound to provide all the material facts. The contract of insurance is a contract of utmost good faith. Therefore, the parties are duty bound of full disclosure of all material facts. The insured is under solemn obligation to act as unanimous and should take proper and necessary steps to save the insured properly and minimize the loss. The said vehicle was insured in the name of M/s HCL Commet Ltd. but later on stood transferred in the name of complainant through insurance cover note for the period commences from 02.03.2010 to 06.11.2010 vide endorsement No.354801/31/09/618200231. The complainant reported the accident on 15.03.2010 to the OP.
During the investigation, the Surveyor reported that near the spot of accident, there are two tolls namely Paduna and Kherwara. The said vehicle passed through Paduna Toll on 22.02.2010 at 08.48 hrs. and from Kherwara Toll on 22.02.2010 at 09.27 hrs. but the said vehicle did not pass through these toll posts from 25.02.2010 to 06.03.2010 although distance between these is approx. 20KMs. towards Ahmedabad. Hence on the basis of records of toll posts, it was crystal clear that said vehicle passed through these and toll posts on 22.02.2010 not 06.03.2010. The surveyor further stated that in order to prove his version, he also submitted the statement of Jai Kishan and Mr. Ganesh Singh owner of New Shere Punjab Hotel which is near to the site of accident. They gave statement to this effect that the damaged vehicle was lying for 15 days from the date of accident i.e. 22.02.2010.
The OP wrote letter dated 29.06.2010 and requested to clarify his position with regard to accident date.
The complainant instead of replying to OP, directly instead replied through his lawyer and stick to his version of accident date i.e. 06.03.2010. As such, OP, came to conclusion that the complainant had given wrong declaration and found guilty of suppression of material facts. The repudiation was based on the followings :
- As per condition No.1 of the policy, immediate information was not given to the insurer as the accident happened on 22.02.2010.
- As per claim form, the date of accident has been mentioned 06.03.2010 whereas as per investigator’s report as well as the written statement of the owner of the Hotel, the accidental date was 22.02.2010 instead of 06.03.2010.
- The said vehicle had not passed through these posts from 25.02.2010 and 06.03.2010 and further even not passed through any toll.
- The Hon’ble Supreme Court in the matter of Oriental Insurance Co. Vs. Sony Cheriyan 1999 6 SCC 451 held as under :-
“the insurance policy between the insurer and insured represents a contract between parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by the insurance policy, the terms of agreement have to be strictly construed to determine the extent of liability of the insurer. “
Both the parties have filed written submissions and evidence-in-affidavits. Written statement is on record so is rejoinder. Oral arguments were head and concluded.
This Commission has gone into the entire gamut of issues. Due consideration was given to arguments. It would be seen from the facts mentioned above that the complainant had reported that the said vehicle met with major accident which resulted in total loss of vehicle.
The investigator so appointed by the OP clearly brought out the real facts that the vehicle had got accident on 22.02.2010 not on 06.03.2010. He proved his version in its report from the entry of vehicle at the toll of Paduna and Kherwara. He even went to this extent that said vehicle had not passed through any toll during the period 25.02.2010 to 06.03.2010. This fact was taken up with the complainant. The complainant did not rebut these facts but stick to his version of accident on 06.03.2010.
Now the question before us was why the complainant was showing the accident date 06.03.2010 instead of actual date of accident. The real answer lies in the date of endorsement of policy in the name of insured. The said vehicle was insured in the name of original owner i.e. M/s HCL Commet Ltd. Later on, the vehicle was purchased by the complainant and stood transferred in the complainant’s name. The OP made endorsement of said policy in the name of complainant from 02.03.2010 to 06.11.2010. This Commission underlines this fact that is why, complainant did not mention the real date of accident i.e. 22.02.2010 instead mention the date of accident on 06.03.2010. The possibility of this mis-representation might have been on the fact that the policy was not endorsed by this date of accident i.e. 22.02.2010. It was duly endorsed on 02.03.2010. From the facts, it is revealed that accident took place on 22.02.2010 and complainant could get the insurance policy endorsed on 02.03.2010. The complainant conveniently chose the date of accident i.e. 06.03.2010. It is also true that as per terms and conditions of the policy, both the parties i.e. insured and insurer are duty bound to give all the material facts.
After considering the facts and circumstances in case, and after respectfully following the decision of Hon’ble Supreme Court and Hon’ble National Commission, this Commission is of strong opinion that the complainant is guilty of reporting of the mis-representation with respect to date of accident which was clearly violation of contract of insurance. Hence, the complainant is not entitled for the claim for total loss of vehicle. The OP has clearly placed all the necessary documents including the well-researched survey report to disprove the claim of complainant. Complaint fails prayer is also rejected.
No order as to the costs.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
