Punjab

Ludhiana

CC/16/235

M/s DPR Cargo Road Express - Complainant(s)

Versus

National Ins.Co.ltd - Opp.Party(s)

G.B.S.Nagar Adv.

12 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 235 of 21.03.2016

   Date of Decision       :   12.11.2018 

 

M/s DPR Cargo Road Express Regd., Booth No.114, Transport Nagar, Ludhiana through its authorized representative.

….. Complainant

Versus

1.National Insurance Company Limited, DAB Br.,SCO 3, Phase-II, U.E.Jamalpur, Focal Point, Ludhiana.

2.Sh.Satish Jindal, Sr.Manager, National Insurance Company Limited., DAB Br.,SCO 3, Phase-II, U.E.Jamalpur, Focal Point, Ludhiana.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.VINOD GULATI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant            :         Sh.Navdeep Verma, Advocate

For OPs                         :         Sh.T.J.S.Jaggi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, a proprietorship firm got its Tata Truck bearing registration No.PB-10-DS-0937 insured with OP1 by paying premium of Rs.28,172/- with validity for period from 20.6.2015 to 19.06.2016. That vehicle met with an accident on 28.8.2015, regarding which, FIR was lodged at Police Station Mandi Gobindgarh under Sections 283/304-A/427 IPC. Thereafter, insurance claim was lodged for amount of Rs.4,50,000/- because of damage caused to the insured vehicle. However, Ops vide letter dated 9.11.2015 repudiated the claim of complainant by falsely claiming that the claim is not payable on account of their being NCB claim in the previous policy. Complainant made OP2 clear at the time of purchase of policy that he has never received any claim in the earlier policy, but despite that repudiation done in an illegal and arbitrary manner, which act alleged to be amounting to deficiency in service. Repudiation of claim caused lot of mental tension and agony to complainant and that is why, this complaint filed after serving legal notice dated 8.2.2016 through counsel for claiming insurance amount of Rs.4,50,000/- with interest @24% per annum from 28.8.2015. Besides, compensation for suffering mental agony and harassment of Rs.50,000/- also claimed.

2.                In written reply jointly submitted by Ops, it is pleaded interalia as if complaint is false and frivolous and same is bad due to non-joinder and mis-joinder of necessary parties as well as complaint has not been filed by an authorized person. OP1 company is required to sue through its incharge, but it is not done so. OP2, the Senior Branch Manager(Incharge) is not a necessary party and as such, Op2 alleged to be dragged unnecessarily in individual capacity. Complainant has suppressed the material facts from this Forum because at the time of obtaining the insurance policy in question from OP1, it was disclosed as if no claim from previous insurer namely Iffco Tokio Insurance Company has been obtained. 35% No Claim Bonus was claimed from OP1 while getting the policy in question issued. This rebate of 35% got by concealing the factum of lodging of claim with earlier insurer namely Iffco Tokio Insurance Company. Letter dated 9.11.2015 was duly sent to the complainant for informing him that as per rules, he was not entitled for 35% No claim bonus, but he has availed concession by way of mis-representation. In view of this mis-representation, it is claimed that claim of complainant rightly repudiated. Due services alleged to be rendered by Ops. Moreover, in view of requirement of complete elaborate evidence, matter needs be got decided from Civil Court. Admittedly, the policy in question from OP1 was purchased with validity period from 20.6.2015 to 19.6.2016. Confirmation from earlier insurer i.e. Iffco Tokio Insurance Company was obtained and thereafter, repudiation of claim done in just and proper manner. Reply to legal notice sent by complainant was duly sent by Ops explaining the true picture. Admittedly, intimation regarding the accidental damage to the insured vehicle was given by complainant to Ops on 26.8.2015 and thereafter, Er.Sharat Bhatia was deputed as surveyor for spot survey, but M/s Arun Kumar & Company was deputed for survey and assessing the loss of vehicle. Survey report dated 1.10.2015 was submitted by Er.Sharat Bhatia, but report dated 30.10.2015 by M/s Arun Kumar & Company was submitted for informing that loss assessed is of Rs.3,25,706/-. Other documents of driving license, RC, fitness certificate and route permit was got verified from the concerned authorities. Ops issued letter/notice dated 1.9.2015 to Iffco Tokio Insurance Company, from where, the complainant got insured his vehicle earlier for period from 20.6.2014 to 19.6.2015. Earlier insurer observed about reporting of insurance claim and that is why, it was found as if complainant got concession in premium @35% against rules by suppressing the material facts. Other averments of complaint denied.

3.               Counsel for complainant tendered in evidence affidavit Ex.CA of Sh.Subhash Chand, a partner of complainant’s company along with documents Ex.C1 to Ex.C5 and even tendered affidavit Ex.CW2 of Sh.Sohan Lal, the authorized representative of complainant along with documents Ex.CW2/A to Ex.CW2/C; CW2/2 to Ex.CW2/7 and thereafter, Sh.Subhash Chand along with counsel closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Satish Kumar Jindal, Sr.Branch Manager of Ops along with documents Ex.R1 to Ex.R15 and Ex.R4A and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed by counsel for both the parties and those were heard. Records gone through minutely. 

6.                Admittedly, the policy in question was purchased by the complainant for the vehicle in question on payment of premium and thereafter, insurance cover note Ex.C2 and the insurance cover policy schedule Ex.R1 was issued by OP1 company. OP2 is the Senior Branch Manager of OP1 company and as such virtually OP2 is impleaded on account of his being incharge of OP1. Certainly, any claim order against OP2 in individual capacity cannot be passed because OP2 being incharge is just an agent of OP1, the insurer-cum-principal.

7.                Admittedly, on lodging of insurance claim regarding accidental damage to vehicle in question surveyors-cum-loss assessors were appointed by OP1, who submitted their reports Ex.R8 and Ex.R13. Through report Ex.R8 of M/s Sharat Bhatia, it was found that driver Boota Singh died in the accident and that FIR regarding accident in question bearing No.188 dated 26.8.2015 actually was lodged. Copy of that FIR is produced on record as Ex.C3 by the complainant. So, accidental damage to the vehicle in question certainly established not only by the contents of FIR Ex.C3, but even by contents of report Ex.R8 along with photographs annexed thereto Ex.R9 to Ex.R11.

8.                M/s Arun Kumar and Company through report Ex.R13 assessed the loss to the damage vehicle of amount of Rs.3,25,706.20P and no evidence to the contrary is lead and as such, it has to be held that loss assessed by the surveyor through report Ex.R13 is quite appropriate. Ex.R14 and Ex.R15 are the documents produced on record to show as if verification of fitness and RC particulars of the truck in question got conducted by OP1 through its surveyor. Only dispute  remains as to whether repudiation of claim through letter dated 9.11.2015 produced on record as Ex.R4 as well as Ex.R4A or Ex.C4 is proper or not. After going through these letters, it is made out as if OP1 held to be claim not payable because of wrong claim regarding NCB, despite the fact that claim was lodged with the previous insurer. That previous insurer is Iffco Tokio Insurance Company. Receipt of notice Ex.C5 by Ops is not denied, but it is claimed that due reply to said notice was sent by Ops. Copy of that reply dated 11.2.2016 is produced on record as Ex.R7.

9.                Bone of contention remains as to whether the claim of NCB @35% in payment of premium was wrongly stacked by way of mis-representation by complainant at the time of purchase of policy in question or not. Counsel for Ops places reliance on no claim bonus confirmation slip Ex.R6 for contending that intimation from previous insurer namely Iffco Tokio Insurance Company was got as if complainant put forth claim in the past year. Period of insurance with Iffco Tokio mentioned in Ex.R6 as 20.6.2014 to 19.6.2015. However, despite this complainant claimed at the time of purchase of policy Ex.R1=Ex.C1 or Ex.R12 as if no claim was got from the previous insurer i.e. Iffco Tokio regarding vehicle in question. In none of these documents Ex.R12 or Ex.R1 or Ex.C1, mention made regarding eliciting of information as to the previous claimed insurance amount. In view of this and in view of non-production of record of the proposal form submitted    by the complainant for purchase of policy in question, it has to be held that complainant was not called upon to disclose about previous claim, if any, lodged by him regarding the vehicle in question with previous insurer.

10.              In case titled as Vijay Somany vs. Reliance General Insurance Company Limited-2014(3)CPJ-576(N.C.), it has been held that if the perusal of proposal form-cum-cover note reveals that it does not bear signatures of complainant on declaration regarding non receipt of claim from earlier insurer, then it has to be inferred as if complainant has not submitted any false declaration regarding non-receipt of claim from the earlier insurer. Further, as per ratio of this case, if no claim bonus of 25% amount had been allowed by agent of respondent on premium, then it cannot be inferred that no claim bonus amount was deducted on declaration of petitioner and in such eventuality, fraudulent intention on the part of insured cannot be inferred. The same is the position in the case before us because here the proposal form has not been produced on record and the cover note referred above does not contain any declaration that 35% NCB allowed to the complainant on account of his declaration of not getting any claim from previous insurer. Rather, document Ex.C2 or Ex.R1 and Ex.R12 not shown to be signed by the complainant at all and as such, if complainant has not disclosed about previous claim lodged with Iffco Tokio in the previous years, then OPs failed to establish as if complainant fraudulently or by way of mis-representation concealed the factum of getting insurance claim from previous insurer. So, ratio of case titled as Vijay Somany (Supra) is fully applicable to the facts of the present case and as such, complainant is entitled to the permissible insurance claim amount for this reason and also for the additional following reasons.

12.              No official of Iffco Tokio Insurance Company has been examined to prove as to what amount of insurance claim paid to the complainant in the previous year and nor the amount paid to complainant in the previous year by Iffco Tokio has been mentioned in Ex.R6 at all. Reporting of claim in the past year in such circumstances mentioned in Ex.R6 alone will not  denude the complainant from due insurance  amount because Ops failed to adduce any convincing           evidence in support of its contention that NCB is claimed in fraudulent manner or by way of mis-representation. In case titled as Reliance General Insurance Company vs. Balbir Singh-2017(1)CLT-158(Haryana State Consumer Disputes Redresssal Commission, Panchkula), it has been held that for proving the plea of wrong claim of no claim bonus, the insurer must lead convincing evidence. Rather, in this reported case, it has been held that merely production of printed slip without any authentication thereof cannot be accepted as proof to conclude that complainant had received claim from previous insurer during previous policy year, more so, when no official examined from the previous insurer in support of that plea. Authenticity of Ex.R6 also not established because original of Ex.R6 has not produced and nor any official of previous insurer from Iffco Tokio Insurance Company has been examined in this case by Ops for establishing that NCB @35% claimed in fraudulent manner by way of suppression of material facts by the complainant. Had really any claim with the previous insurer by complainant been lodged, then Ops must have elicited information about nature of claim, the amount claimed and period, for which, the claim stacked. Such information is not at all elicited through Ex.R6 even and as such, just on strength of photostat copy  Ex.R6, it cannot be held that 35% NCB claimed in fraudulent manner. Being so, entitlement of complainant to claim due insurance amount as per ratio of the cited cases will be there.

13.              Counsel for Ops vehemently places reliance on GR 27(f) Clause of Indian Motor Tariff Rules, regarding which, copy placed on record as Ex.R3 for arguing that in view of declaration submitted by complainant regarding non claiming of NCB, the NCB @35% was allowed. No copy of that declaration has been produced on record and nor the same produced in original by Ops and as such, it cannot be held that on the basis of declaration referred in sub clause (f) of GR-27 of Indian Motor Tariff Rules, NCB @35% was granted. Rather, after going through clause (f) of GR-27(Ex.R3), it is made out that in case the insured has transferred his insurance from one insurer to another insurer, then the transferee insurer will allow the same rate of NCB, which the insured would have received from the previous insurer. This clause (f) further provides that evidence of the insured’s NCB entitlement either in the form of a renewal notice or a letter confirming the NCB entitlement from the previous insurer will be required for this purpose. No such evidence collected by OP1 by issue of renewal notice or letter for confirming the NCB entitlement of complainant before issuing the policy cover note Ex.C2=Ex.R1=Ex.R12 in this case at all and as such, it is obvious that fault lay with OP1 in not collecting the evidence of entitlement of complainant for NCB. Even the declaration required by this clause (f) of GR-27 as referred above not shown to be obtained and as such, fault exclusively lay with OP1.

14.              The non abstante clause appended to clause (f) of GR-27 provides that insurer i.e.(OP1of this case) will be obliged to write to the previous                insurer by recorded delivery calling for confirmation of the entitlement and rate of NCB for the particular insured. On such recorded delivery of written request, previous insurer (iffco Tokio in this case) is obliged to provide information sought within 30 days of receipt of letter of enquiry, failing which, matter will be treated as a breach of tariff on the part of the 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 as per this non abstante clause. In this case before us, Ops claim to have written letter dated 1.9.2015 Ex.R6 only to Iffco Tokio for seeking information about entitlement of complainant to NCB. However, the insurance coverage for the vehicle in question provided to the complainant by OP1 through cover note Ex.C2 with validity period from 20.6.2015 to 19.6.2016. This means that letter seeking information qua entitlement of complainant to get NCB must have been written by OP1 within 21 days before grant of cover note Ex.C2 dated 19.6.2015. However, no such written request shown or claimed to be sent within the stipulated period of 21 days. Rather, the intimation through letter dated 1.9.2015 sought after lapse of 63 days of grant of NCB to complainant through cover note Ex.C2=Ex.R1=Ex.R12 and as such, breach of tariff committed by OP1 in this case. In view of breach of Indian Tariff Rules committed by OP1, they are denuded from denying the claim of complainant, more so when fraudulent mis-representation or fraudulent concealment of material facts not established as held above. Even if the vehicle is meant for commercial purpose, but despite that insurance claim is maintainable because relationship of service provider and consumer  exists between the complainant as insured and OP1 as insurer. As the survey report Ex.R13      properly has assessed the damage of amount of Rs.3,25,706.20P and as such, entitlement of complainant will be to this extent, particularly when contents of report Ex.R13 are not falsified regarding due entitlement of complainant. Production on record bills Ex.CW2/A to Ex.CW2/C or Ex.CW2/1 to Ex.CW2/7 by complainant is not sufficient because the amounts mentioned in these bills taken note of in report Ex.R13 for assessing the due amount of compensation by keeping in view the permissible depreciation and the age of the vehicle etc.                       No other points argued.

15.              Therefore, as a sequel of the above discussion, complaint allowed with direction to OPs to pay the insurance claim amount of Rs.3,25,706.20P(as assessed through report Ex.R13) to the complainant with interest @9% per annum from the date of repudiation of claim namely 09.11.2015 till payment. Compensation for mental harassment and agony of Rs.10,000/- (Rupees Ten Thousand only) and litigation expenses of Rs.5,000/- (Rupees Five Thousand only) more allowed in favour of complainant and against Ops. Payment of awarded amounts of compensation and litigation expenses be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

16.                        File be indexed and consigned to record room.

 

 

 (Vinod Gulati)                                         (G.K.Dhir)

 Member                                                     President

Announced in Open Forum

Dated:12.11.2018

Gurpreet Sharma.