DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 77 of 2015
Date of filing: 13.3.2015 Date of disposal: 22.01.2016
Complainant: Dipak Kumar Singh, S/o. Sri Raj Kumar Singh, resident of G.T.Road, Nandalal Bhawan, Police Station: Raniganj, District: Burdwan, PIN – 713 347.
-V E R S U S-
Opposite Party: National Insurance Company Limited, represented by the Branch Manager, Raniganj Branch Office, Plot No. 408 (1st Floor), 29/A, N.S.B.Road, Opp. Ashoka Petrol Pump, Police Station: Raniganj, District: Burdwan, Pin – 713 347.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party: Ld. Advocate, Shyamal Kumar Ganguli.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the op as the op had arbitrarily repudiated his legitimate insurance claim.
The brief fact of the case of the complainant is that the heavy commercial motor vehicle of him is covered under comprehensive insurance package policy with the op for the period from 14.3.2014 to 13.3.2015. The vehicle was earlier insured with the Oriental Insurance Company Ltd. for the period from 14.3.2013 to 13.3.2014. The original policy of the said insurance was retained by the op and only its schedule was given to the complainant. Within the validity period of the instant policy obtained from this op the insured vehicle met with an accident on 03.8.2014 on Durgapur Expressway and due to such accident the driver of the said vehicle sustained physical injury and the front portion of the vehicle got damage. Be it mentioned that in this accident the driver had no contribution or fault. The information of the accident was given in writing by the complainant to the op on 05.8.2014 requesting to provide the claim form and for taking spot survey. The claim form was lodged by the complainant before the op along with other related papers and documents on 11.8.2014 and at that point of time reminder was given by him for appointment of a Surveyor/Loss Assessor to assess the loss and damage of the vehicle. On 29.10.2014 the complainant informed the op in writing that the vehicle had been fully repaired and after its repairing it became in workable condition and accordingly he submitted the entire bills and cash memos showing the expenditure incurred by him for such repairing. The complainant requested the op for making payment as per details as given in the schedule at the foot of this complaint. The vehicle thereafter was reinspected on 31.10.2014 by the accredited representative of the op to found the same in running and workable condition for use. Accordingly the complainant by issuing a letter dated 03.11.2014 requested the op to allow the vehicle to be used as the same was sitting idle without any income. But the op by issuing a repudiation letter dated 02.12.2014 refused to pay the claim of the complainant on the plea that in respect of earlier insurance policy for the year 14.3.2013 to 13.3.2014 there was a claim and the same was settled by the Oriental Insurance Company Ltd., but the said information had not been disclosed by the complainant in the proposal form as well as declaration form. According to the complainant such allegation is baseless, illegal and on this vague point the op cannot refuse to make payment of his bonafide claim. One unnumbered memo dated 14.10.2014 addressed to the Oriental Insurance Co. Ltd. by the op with an annexed format dated 16.10.2014 relating to the policy period for 14.3.2013 to 13.3.2014 and the same was also served upon this complainant as a ground for refusal of his claim, but the said document is forged and fabricated one. Unnumbered memo dated 14.10.2014 and the format dated 16.10.2014 had never been sent to the Oriental Insurance Company Ltd. for which the op has failed to justify its refusal. Moreover no such intimation as per the format was ever furnished by the Oriental Insurance Company Ltd. to this complainant till date. It has been alleged by the op that the complainant had given false declaration in his proposal form. Actually no wrong declaration in the proposal form for the policy with the op was given by this complainant. The proposal form was filled up by the Development Officer of this op and after due verification the complainant put his signature. After repudiation the complainant by issuing a letter upon the op dated 10.2.2015 intimated that if the genuine claim is not paid within a month from the date of service of this letter the complainant will approach before the court of law for redressal of his grievance. As the grievance of him had not been redressed by the op finding no other alternative the complainant has filed this complaint before this ld. Forum praying for direction upon the op for making payment of Rs. 3, 82,114=50 towards the repairing charge of the damaged vehicle, interest @15% per annum over the said amount, cost of the notices for Rs. 5,000=00 and litigation cost of Rs. 20,000=00.
Be it mentioned that after the prayer portion the complainant has given one schedule stating the expenditure incurred by him as repairing charge of the vehicle.
The petition of complaint has been contested by the op by filing written version contending that the op had issued a commercial vehicle package policy coverage for the vehicle bearing Registration no. WB 37C-5115 in favour of the insured being the owner of the vehicle and the said policy was issued for the period from 14.3.2014 to 13.3.2015 subject to receipt of the due premium amount from the insured. It was intimated by the insured through his letter dated 05.8.2014 addressed to the Branch Manager of the op that on 03.8.2014 at about 3.30 am while the insured vehicle was returning after unloading at Uluberia on its way back the empty vehicle met with an accident on the NH-2 under the jurisdiction of Memari Police Station and due to this accident the vehicle got damage from left side along with injury of co-driver and thereafter the vehicle and the driver was taken in the custody of IC, Palsit. On 11.8.2014 the complainant submitted claim form duly filled along with estimate for repairing, copy of the RC book, road tax, permit, DL and fitness certificate, copy of the FIR and the insurance certificate requesting to depute Surveyor for assessment of magnitude of damage. The Insurance Company deputed Mr. Tridib Kr. Banerjee for survey on 11.8.2014 to assess the loss and damage of the said vehicle. On careful perusal of the document it was observed that at the time of issuing this policy no claim bonus (20%) was allowed on the basis of undertaking given by the complainant. However, on further perusal and verification it was noted from earlier insurer the Oriental Insurance Co. Ltd, Asansol that a policy was issued by the said Insurance Company covering the same vehicle for the period from 14.3.2013 to 13.3.2014. The above fact was noted from the statement of the Oriental Insurance Co. Ltd. and also from the record of claim paid register of the said company it is noted that on 26.8.2013 an amount of Rs. 49,000=00 was paid to this complainant being insured of the said vehicle by the Oriental Insurance Company Ltd. Surprisingly in an undertaking given by the insured it has been stated by way of declaration that ‘the rate of NCB claimed by me is correct and no claim has arising in the expiring policy period. I further undertake if this declaration is found to be incorrect, all benefit under the policy in respect of Section 1 of the policy will stand forfeited’. The previous policy of the Oriental Insurance Company Ltd. under reference, the statement of settlement of claim by the Company based on claim paid register by PIO, declaration by the complainant in respect of non-receipt/enjoyment of any NCB in past has been filed by this op in the different annexures. After enquiry by this op from the past insurer the information was duly intimated to the complainant. The op has further submitted that as per Indian Motor Tariff, 2002 framed by the Tariff Advisory Committee, a statutory body under the Insurance Act, 1938, the insured is not entitled to get any claim in terms of General Regulation no. 27 and for this reason the instant claim is not payable as per Insurance Act. Since the claim was inadmissible and the same was intimated through the letter dated 02.12.2014 to the complainant-insured, question of deficiency in service as well as unfair trade practice do not arise because the op had repudiated the claim of the complainant rightly and legally. It is stated by the op that it forwarded further letter on 14.01.2015 to the complainant stating that since no reply was received from the insured in response to the letter dated 02.12.2014 about the inadmissibility of the claim the Insurance Company having no alternative closed the file of the insured as per the policy terms and conditions which is laid down in the provision of NCB under Para (f) GR 27 of Motor Guideline, 2007. Therefore the op being compelled had closed the file due to violation of policy terms and conditions as the complainant given wrong declaration regarding no claim bonus with an ulterior motive for self-gain by suppressing the actual facts. According to the op as this complaint has no merit and moreover being a frivolous and vexatious one it should be dismissed with exemplary cost.
Complainant has filed evidence on affidavit. Both parties have filed several papers and documents in support of their respective contention. The complainant has relied on the judgment passed by Hon’ble SCDRC, Haryana. The complainant has filed a photocopy of GR 27 on which the op has also placed his reliance.
We have carefully perused the record and the papers and documents filed by both the contesting parties and heard argument advanced by the ld. Counsel for the parties at length. It is seen by us there are some admitted facts in the case in hand that are the heavy commercial motor vehicle of the complainant was under the coverage of comprehensive insurance package policy for the period from 14.3.2014 to 13.3.2015 obtained from this op, this vehicle was earlier insured with the Oriental Insurance Company Ltd. for the period from 14.3.2013 to 13.3.2014, during validity of the insurance policy with this op the insured vehicle met with an accident on 03.8.2014, for which the vehicle got damage, the driver sustained physical injury, the information of accident was given in writing to the op on 05.8.2014, spot survey made, claim form issued, the same was filed along with relevant papers and documents to the op for reimbursement, the op was informed by the complainant through letter that the vehicle has been repaired, it became workable condition, the complainant submitted entire bills and cash memos showing the expenditure incurred by him towards cost of the damaged insured vehicle, request was made by the insured for making payment of the said expenditure, the vehicle was reinspected by an accredited representative of the op on 31.10.2014, permission was given for its running as it became in workable condition by issuing letter dated 02.12.2014, the insurance claim of the complainant had been repudiated by the op on the ground that during taking the policy misstatement was given in respect of NCB by the complainant in the proposal form and accordingly the claim file has been closed by the op. The allegation of the complainant is that the op has repudiated his legitimate insurance claim arbitrarily and illegally as the ops did not comply with the General Regulation 27 of the Indian Motor Tariff. The averment of the op is that as the complainant provided misstatement in the proposal form and thereafter also gave a false declaration in respect of NCB the claim is not payable.
During hearing the ld. Counsel for the complainant as well as the op have relied on the GR 27 which runs as follows:
GR 27: No claim Bonus:
- No claim bonus (NCB) can be earned only in the Own Damage section of Policies covering all classes of vehicles but not on Motor Trade Policies (Road Transit Risks/Road Risks/Internal Risks) and policies which cover only Fire and/or Theft Risks. For policies covering Liability with Fire and /or Theft Risks, the NCB will be applicable only on the Fire and/or Theft components of the premiums. An insured becomes entitled to NCB only at the renewal of a policy after the expiry of full duration of 12 months.
- ……………………………………………..
- in the event of the insured, transferring his insurance from one insurer to another insurer, the transferee insurer may allow the same rate of NCB which the insured would have received from the previous insurer. Evidence of the insured’s NCB entitlement in the form of a renewal notice or a letter confirming the NCB entitlement form the pervious insurer will be required for this purpose.
Where the insured is unable to produce such evidence of NCB entitlement from the previous insurer, the claim NCB may be permitted after obtaining from the insured a declaration as per the following wording
‘I/we declare that the rate of NCB claimed by me/us is correct and that no claim as arisen in the expiring policy period (copy of the policy enclosed). I/we further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section 1 of the Policy will stand forfeited.
Notwithstanding the above declaration, the insurer allowing the NCB will be obliged to write to the policy issuing office of the previous insurer by recorded delivery calling for confirmation of the entitlement and rate of NCB for the particular insured and the previous insurer shall be obliged to provide the information sought within 30 days of receipt of the letter of enquiry failing which the matter will be treated as a breach of Tariff on the part of the previous insurer. Failure of the insured grantee the NCB to write to the previous insurer within 21 days after granting the cover will also constitute a breach of the Tariff.’
During hearing the ld. Counsel for the op has relied on the document termed as declaration made by the complainant and argued that the said declaration is false because the op got knowledge from the earlier insurer that in respect of the earlier policy the complainant got a claim for Rs. 49,000=00 in respect of this particular vehicle and the same information has been withheld by the complainant and in the declaration form the complainant also committed that if there is any incorrect information provided by him then all the benefits under the policy will stand forfeited. In respect of this document (declaration form) the ld. Counsel for the complainant has argued that this document cannot be entertained as true because in the said document the vehicle registration number has been written as WB 38C-5115, but the registration number of the complainant’s insured vehicle is WB 37C-5115. It is further submitted by the complainant that 37C/38C denotes the area code. As the registration number mentioned in the declaration form is not same and identical with the actual registration number of the insured vehicle of the complainant the said declaration form cannot be treated as true for proper adjudication of this complaint. Moreover, it is further argued by the complainant that this document is a fabricated one as there is no mentioning of date in the said document. The ld. Counsel for the op has further stated that in the proposal form the complainant has mentioned that there was no claim in 2013-14, but actually the complainant got claim from the Oriental Insurance Company Ltd. during that period but he has provided misstatement. It is further argued by the ld. Counsel for the op that the contract of insurance is based on utmost good faith and as the complainant has provided misstatement the policy should be void ab initio. In this respect ld. Counsel for the complainant has argued that as the op has relied on GR 27 of the Indian Motor Tariff it was the compulsion of it (OP) to comply with the said General Regulation and abide by the same in to to, but the op did not do the same, because it was the duty of the op to write to the policy issuing office of the previous insurer calling for confirmation of the entitlement and rate of NCB for the particular insured, but without doing so the op wrote to the earlier insurer after lapse of more than seven months and got knowledge that the complainant received claim in respect of the earlier policy from Oriental Insurance Company Ltd. to the tune of Rs. 49,000=00.
In view of the above GR 27 of the Indian Motor Tariff it is clear that at the time of taking the policy, the insured can take benefit of no claim bonus if he provides information that he had not taken any claim during the period of pervious policy. But if the insured does not furnish any such information, the Insurance Company can take declaration of the insured to this effect and thereafter can collect information from the concerned office of the previous Insurance Company by writing a letter within 21 days after granting the cover on failure of which it will constitute a breach of tariff.
As per GR 27 of the Indian Motor Tariff the op was required to obtain declaration from the complainant in respect of NCB for the previous Insurance Policy and then to collect information from the previous insurer within 21 days from the date of issuing the insurance cover. But in the instant case the op has failed to produce evidence that declaration from the complainant was taken at the time of issuing the policy and any letter was written to the previous insurer of the vehicle within 21 days from the date of issuing of the instant insurance policy. Thus the op itself has failed to adhere to the provisions of GR 27 of the Indian Motor Tariff. Though the op has claimed that the declaration has been obtained from the complainant but the registration number of the vehicle of the said declaration does not match with the instant registration number of the insured vehicle. It is submitted by the op that along with the said declaration the policy was annexed from where it will be evident that due to typographical mistake or inadvertence such error has cropped up in writing of the number of the registration number and the policy concerned will prove that the declaration was given by the complainant in respect of this policy. In our view there is no such evidence before us that along with this declaration form the insurance policy of the complainant was annexed or not. Therefore we cannot draw a conclusion that the registration number was written incorrect in the declaration form due to inadvertence. Thus from the facts and circumstances of the case it is established that neither the op obtained declaration from the complainant at the time of issuing insurance policy nor had written any letter to the previous Insurance Company to collect information in this regard within the stipulated 21 of days, which constitute a breach of the tariff of GR 27 of the Indian Motor Tariff. Thus we are of the view that the op cannot be absolved from its liability to pay the amount as sought for towards repairing cost under the insurance policy.
The complainant has relied on a judgment passed by the Hon’ble SCDRC, Haryana, Panchkula. We have perused the said judgment and in our view this judgment is applicable in the case in hand because the facts and circumstances of the case are totally same and identical with the case in hand.
In the petition of complaint under the heading of schedule complainant has mentioned that he had to incur expenditure to the tune of Rs. 3, 82,114=50 towards the repairing cost of the damaged insured vehicle. It is seen by us that after accident information was given to the op and Surveyor was appointed to assess the loss and damage but in the record Surveyor’s report is not forthcoming. Therefore, there is no denial on the part of the op that the insured vehicle of the complainant did not get any loss and damage due to the accident. Moreover, in the written version also the op did not raise any objection by writing a single sentence that the complainant did not incur expenditure to the tune of Rs. 3, 82,114=50 towards the repairing cost of the damaged vehicle. It is true that the complainant did not submit the bills and voucher, but as the op has not denied the amount, we are inclined to accept the amount towards actual expenditure towards repairing cost of the damaged vehicle.
It is true that the op did not pay the legitimate insurance claim to the complainant for which he had to suffer financial loss, harassment and mental agony, which gave birth deficiency in service on behalf of the op for which the complainant is entitled to get compensation. But as the complainant did not pray for any amount towards compensation we are not in a position to grant the same. Complainant has prayed for litigation cost and in our view he is entitled to get the same because as his grievance had not been redressed by the op before coming to the court of law and he had to incur some expenses for this proceeding he is entitled to get litigation cost.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest with cost. The Opposite Party is directed to pay Rs. 3, 82,114=50 to the complainant within 45 days from the date of passing of this final order/judgment towards repairing cost of the damaged vehicle along with interest @7% per annum from the date of filing of this complaint till realization, failing which, the abovementioned amount (Rs. 3, 82,114=00 + interest) will carry penal interest @9% per annum for the default period. The Opposite Party is also directed to pay Rs. 2,000=00 as litigation cost to the complainant within 45 days from the date of passing of this final order/judgment, failing which, the complainant will be at liberty to put the entire decree in execution as per provisions of law.
Let plain copies of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
