Complainant Savita Mahajan through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite party be directed to pay Rs.3,05,100/- alongwith interest @ 18% per annum from the date of accident till its realization. Opposite party be further directed to pay Rs.1,50,000/- on account of harassment, mental agony and financial loss to him alongwith Rs.35,000/- as litigation expenses in the interest of justice.
2. The case of the complainant in brief is that he is special power of attorney holder of Savita Mahajan as such he is well conversant with the facts of the complaint and is authorized to file the complaint, appear and file affidavits in any competent court of law in India on behalf of Savita Mahajan. He purchased a comprehensive policy for the truck-trolla make Bharat Benz bearing registration No.PB-06-V-2775 Model 2013 for Rs.18,00,000/- and paid the premium of Rs.33,324/- to the opposite party. This insurance was effected by Sh.Rajinder Mahajan Agent Code No.2901. To this, the opposite party issued “Certificate of Insurance cum-policy Schedule” bearing policy no.401502/31/15/6300004166 valid from 18.9.2015 to 17.9.2016 mid night at Gurdaspur. Hence he is consumer of the opposite parties. He has next pleaded that his Truck-Trolla ,met with an accident on 5.8.2016 at Narsoo National Highway Police Station Chenani Distt.Udhampur (J&K) and an FIR No.81/2016 dated 5.8.2016 under section 279/337/304-A of RPC was registered with Police Station Chenani Distt.Udhampur. He immediately intimated the accident to the opposite party. They appointed Sh.Vinod Malhotra Surveyor for spot inspection and survey of damage, who surveyed the loss at the spot, took photographs of the damaged truck-trolla and all the documents. After this he took the trolla to the authorized Workshop of Bharat Benz company at village Mehandpur, Delhi-Amritsar NH-1, Tehsil Khanna Distt.Ludhiana for repair. The opposite party appointed Mr.Bansin for the final survey and finalizing damage of the abovesaid truck-trolla at Ludhiana. He again fulfilled all the formalities and submitted all the required documents by the opposite party to their authorized surveyor. He also submitted original bills to the tune of Rs.3,05,100/- to Mr.Banasin, but to his utter surprise, he received a registered letter dated 23.3.2017 repudiating his genuine claim on flimsy ground. Again he received a letter dated 30.3.2017 through courier repudiating his genuine claim. He has next pleaded that the agent of opposite party never filled the proposal form in his presence nor he signed any proposal form of the opposite party for getting insured Truck-Trolla from 18.9.2015 to 17.9.2016. To his utter surprise, the opposite party remained silent from the date of insurance i.e. 18.9.2015 and never confirmed from the previous insurance company i.e. United India Insurance Co.Ltd. Gurdaspur for confirmation of ‘No Claim Bonus’ of the vehicle for about 11 months till the date on which the above mentioned truck-trolla met with an accident. Only on lodging of the Own Damage Claim of the above truck-trolla, with the malafide intention the opposite party got up from sleep and wrote letter to United India Insurance Co. For confirmation of No Claim Bonus. The opposite party took this step only to avoid and not to pay his genuine claim. Till the date of accident i.e. 5.8.2016, the opposite party never wrote any letter to him seeking clarification on the No Claim Bonus Clause of the policy. This act of the opposite party is deficiency in services on their part. Hence this complaint.
3. Upon notice, the opposite party appeared through their counsel and filed the written reply by taking the preliminary objections that complaint is not maintainable and is liable to be dismissed, the complaint is absolutely false, frivolous and no cause of action has ever arisen in favour of the complainant against the opposite party. On merits, it was submitted that after receiving intimation from complainant on 05.08.2016 opposite party deputed Mr.Vinor K Gandotra Surveyor and Loss Assessor Udhampur (J & K) for Motor spot Survey report. Mr.Vinor K. Gandotra Surveyor and Loss Assessor Udhampur (J & K) submitted his Motor Spot Survey report on 20.08.2016. Thereafter opposite party deputed R.P.Bhasin and Co. Surveyor and Loss Assessor Ludhiana for assessing the loss to the vehicle. R.P.Bhasin and Co. Surveyor and Loss Assessor Ludhiana submitted his Motor Survey Final report on 25.10.2016 by assessing net value loss to the vehicle no.PB-06V-2775 in the name of Mrs. Savita Mahajan of Rs.1,80,068.61/-. Thereafter opposite party gone through policy report of vehicle No.PB-06V-2775 in the name of Mrs. Savita Mahajan, the complainant availed No Claim Bonus from opposite party at the time of taking insurance of vehicle no.PB-06V-2775 for the period from 18.09.2015 to 17.09.2016 in the name of Mrs. Savita Mahajan on the basis of previous insurance with United India Insurance Co.Ltd. Thereafter opposite party got confirmation from United India Insurance Co.Ltd. regarding taking of accident claim by complainant in respect to loss accrued to vehicle No.PB-06V-2775 in the name of Mrs.Savita Mahajan. So complainant has availed No Claim Bonus from opposite party at the time of taking insurance of vehicle no.PB-06V-2775 in the name of Mrs.Savita Mahajan on the basis of previous insurance with United India Insurance Co. by giving false declaration. So as per section 1 of the policy the declaration given by complainant is found incorrect and all the benefits under the policy shall stand forfeited and as per terms and conditions of the policy the claim of the complainant is not maintainable. The opposite party vide its letter dated 23.03.2017 called upon complainant to give his clarification on above mentioned observation within 7 days from the date of letter but he did not respond. Thereafter, the opposite party repudiated the claim of the complainant vide its letter dated 30.03.2017 duly served upon complainant. So as per the terms and conditions of the Insurance Policy opposite party is not liable to indemnify any loss accrued to vehicle no.PB-06V-2775 in the name of Mrs.Savita Mahajan. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Counsel for the complainant tendered into evidence affidavit of Sh.Ravi Kant Special Power of Attorney Holder Ex.CW1/A alongwith other documents Ex.C1/A and Ex.C1 to Ex.C10 and closed the evidence.
5. Counsel for the opposite party tendered into evidence affidavit of Sunil Tulli Divisional Manager NIC Ltd.Ex.OP-1, alongwith other documents Ex.P-2 to Ex.OP9 and closed the evidence.
6. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted on account of the impugned repudiation (Ex.C8/ Ex.C9/ Ex.OP8 & Ex.OP9) of the Accident Insurance Claim (Ex.OP2) of the complainant’s insured (Ex.OP5) Truck HGV Vehicle on account of her having purchased the related policy with NCB (No Claim Bonus) to which she otherwise has not been entitled since the first (previous) insurers did report of an ‘availed-claim’ per the previous policy vide Ex.OP6 dated 16.03.2017.
7. We have intently examined complete records of the instant proceedings so as to subject the impugned ‘repudiation’ etc to judicial/legal review-analysis in the light of its factum back-drop so as to determine the final but statutory reach. We find that the OP insurers have failed to produce cogent evidence to prove its allegation that the complainant had made a falsified statement to avail of the NCB while purchasing the related policy and in its absence the drawn upon premium was duly paid over to the Agent Brokers of the OP insurers so as to receive the vehicle’s insurance policy effective from 18.09.2015, itself; up to midnight of 17.09.2016; and thus it was for the OP to have checked of the NCB with the first insurers. It was for the OP insurers’ agent brokers to have advised and procured the correct premium cheque in proper order. One cannot be allowed to derive benefit of its own folly/ inefficiency (here deficiency in service and unfair trade practice); so we are somehow inclined to go by and follow the above legal proposition that carries the assent of the superior courts by virtue of a plethora of judgments on the subject matter under reference. We are further strengthened in our overall above legal contention by virtue of the NCDRC rulings as made out in 2016(3) CLT 498, 2017(2) CLT 376 that have lead us to adjudicate the present complaint in the instant way. Further, we have to state that we respectfully concur with the judgments of the senior courts as cited out by the OP insurers but even these do not assist them purposefully on account of varying ratios.
8. In the light of the all above, and under the prevailing circumstances we are of the considered opinion that the present complainant has been made to suffer an intentionally imposed harassment through arbitrariness and that lines up the titled opposite parties to an adverse statutory award under the applicable statute. Thus, we partly allow the present complaint and ORDER the opposite party insurers to pay the impugned claim (as per the surveyor’s assessment) to the present complainant besides to pay her Rs.5,000/- as compensation and Rs.3,000/- as cost of litigation within 30 days of the receipt of copy of the orders otherwise the aggregate award amount shall attract interest @ 9% PA from the date of the orders till actually paid.
9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
January,19 2018 Member
*MK*
