Haryana

Yamunanagar

cc/114/2010

The Shera Coop Transport Society Ltd. - Complainant(s)

Versus

New India Assurance Co. Ltd. - Opp.Party(s)

Subhash Chand

12 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 114 of 2010.

                                                                                             Date of institution: 16.2.2010.

                                                                                             Date of decision: 12.10.2015.

The Shera Co-op. Transport Society Ltd. Village Sherpur (Chhachhrauli) Distt. Yamuna Nagar through its President Shri Daljit Singh son of Shri Jai Ram, resident of village Sherpur, District Yamuna Nagar.    

                                                                                                                                                 …Complainant.

                                    Versus

 

The New India Assurance Co. Ltd. Opp. Madhu Palace, Jagadhri Road, Yamuna Nagar through its Branch Manager.      

                                                                                                                                                                                                                                                                                                                                                                                     …opposite party.

 

Before:            SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Subhash Chand, Advocate, counsel for complainant.   

                Sh. Rajiv Gupta, Advocate, counsel for OP.        

             

ORDER

 

1.                     Complainant Society has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent ( hereinafter referred as OP) be directed to pay a sum of Rs. 2,01,150/- alongwith interest at the rate of 24% per annum being cost of repair of bus bearing registration No. HR-58-4835 and further to pay Rs. 2,00,000/- on account of mental agony and harassment etc.

2.                     Brief facts of the complaint, as alleged by the complainant, are that complainant is a cooperative society and Sh. Daljit Singh is its President who has been authorized vide resolution dated 5.2.2010 passed by the Managing Committee in its meeting held on 5.2.2010 to file this complaint on behalf of the society. It has been mentioned that complainant is registered owner of the bus bearing No. HR-58-4835 which was duly insured with the OP vide policy No. 353503/31/09/01/00001319 w.e.f. 19.7.2009 to 18.7.2010 for a sum insured of Rs. 3,60,000/- and paid a premium of Rs. 20257/- as per insurance policy (Annexure C-26). It has been further mentioned that when on 19.7.2009 at about 2.00 P.M. the bus in question owned by complainant-society, had left for Jagadhri from Madipur and reached near Pulia of village Kot at about 2.30 P.M. in the meantime a Neel Cow suddenly came on the road in front of the bus by running from the fields and driver of the bus namely Sanjay Kumar brought the bus extreme to right side of the road to save the Neel Cow and while applying brakes, bus become out of control and struck against the Pulia and thereafter rolled down into the Khad, as a result of which body of the bus was damaged as mentioned in the estimate given by the complainant to the OP. The loss caused to the bus in question was intimated to the OP and estimated cost of Rs. 2,01,150/- was given to the OP and the claim was lodged vide claim No. 09/072. The matter was also reported to the police of P.S. Chhachrauli and Rapat No.16 dated 19.7.2009 was also recorded. The complainant got abovesaid bus repaired by incurring expenses to the tune of Rs. 2,01,150/- regarding which bills have already been submitted to the OP but the claim of the complainant was not settled by the OP inspite of repeated requests and demands and ultimately the official of OP asked the complainant to submit the bills of loss amount to the tune of Rs. 1,21,711/- to which the complainant did not agree and even then bills of Rs. 1,21,711/- were submitted to the OP because the OP assured the complainant that initially this amount of Rs. 1,21,711/- will be disbursed and the remaining amount will be disbursed later on. However, the OP repudiated the claim of the complainant vide letter dated 27.1.2010 on flimsy ground in utter violation of the terms and conditions of the policy. Hence this complaint.  

3.                     Upon notice, OP appeared and filed its written by taking some preliminary objections such as complaint is not maintainable, there is no negligence or deficiency in service on the part of OP, complainant has not come with clean hands and has mislead the facts of the case and on merit it has been mentioned that an intimation dated 20.7.2009 was received by the OP that the bus in question has met with an accident on 19.7.2009 and on receipt of this intimation, the OP company immediately deputed Sh. A.K. Chhatwal, Surveyor and Loss Assessor to survey and assess the loss. The said surveyor conducted the survey of damaged vehicle at M/s Islam Body Repair Maker, Yamuna Nagar on 21.7.2009 and assessed the loss to the damaged vehicle on repair basis to the tune of Rs. 62125/- including the cost of parts and labour and submitted his report on 15.9.2009. On receipt of the said report, claim was further processed by the OP and Sh. M.L.Garg Surveyor & Loss Assessor was depute to conduct the re-inspection of the vehicle in question after its repair which was conducted on 7.10.2009 and submitted his report on 13.10.2009.

4.                     Further, during the process of claim it was observed by the OP company that complainant/insure had availed 50% “No Claim Bonus” ( NCB) at the time of getting his vehicle insured with the OP Company. The complainant had not given any intimation to the OP company i.e. New India Insurance Company regarding any accident claim under the previous policy taken from Oriental Insurance Company and accordingly 50% No Claim Bonus was availed by the insured/complainant from the OP company at the time of taking insurance policy. The insured/complainant knowingly and intentionally misrepresented the OP company by not disclosing the claim under the previous policy and availed 50% NCB at the time of renewal of the policy in question which is clear cut violation of the terms and conditions of the insurance policy and General Regulations No.27 of Indian Motor Tariff and on account of the said reason the claim of the complainant is not payable as the contract of the insurance is based upon utmost good faith and confidence and the information which are strictly within the knowledge of party to the contract must be intimated to the insurance company at the time of proposing of insurance. Hence, the claim of the complainant has been rightly repudiated vide letter dated 27.1.2010 on account of claiming false No Claim Bonus of 50% under the policy in question and there is no deficiency in service on the part of OP and prayed for dismissal of complaint.

5.                     To prove the case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of repudiation of claim letter dated 27.1.2010 as Annexure C-1, Photo copies of bill of Islam Body Repair Maker as Annexure C-2, C-3 and C-9, Photo copy of bills of New Dashmesh Motor Repair as Annexure C-4 & C-13, Photo copies of bills of Haryana Auto Electric Works as Annexure C-5, C-12 and C-14,  Photo copies of bills of Navneet Enterprises as Annexure C-7, C-8, C-17 and C-18, Photo copies of bills of Shiv Shankar Hardware Store as Annexure C-10 and C-11, Photo copies of bill of Raju Motor Works as Annexure C-15 and C-16, Photo copy of letter dated 29.7.2009 as Annexure C-19, Photo copy of discharge voucher as Annexure C-20, Photo copy of letter dated 27.8.2009 as Annexure C-21, Photo copy of letter dated 9.10.2009 as Annexure C-22, Photo copy of Registration Certificate as Annexure C-23, Photo copy of fitness certificate as Annexure C-24, Photo copy of receipt as Annexure C-25, Photo copy of insurance policy as Annexure C-26, Photo copy of DDR Annexure C-27, Copy of resolution of Shera Coop. Transport Society as Annexure C-28 and closed the evidence on behalf of complainant. 

6.                                 On the other hand, counsel for the OP tendered into evidence affidavit of S.L. Gulati Senior Divisional Manager, New India Assurance Co. Ambala Cantt. as Annexure RX, Affidavit of A.K.Chhatwal, Surveyor and Loss Assessor as Annexure RY and documents such as Photo copy of letter dated 27.1.2010 as Annexure R-1, Photo copy of proposal Form as Annexure R-2, Photo copy of Insurance Cover Note as Annexure R-3, Photo copy of insurance policy as Annexure R-4, Photo copy of claim intimation letter  as Annexure R-5, Photo copy of claim form as Annexure R-6, Photo copy of surveyor report of Sh. A.K.Chhatwal as Annexure R-7, Photo copy of re-inspection report as Annexure R-8 Photo copy of letter dated 9.10.2009 as Annexure R-9, Photo copy of letter dated 27.8.2009 as Annexure R-10 and closed the evidence on behalf of OP. 

7.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments mentioned in the reply and prayed for dismissal of complaint.

8.                      It is admitted fact that the complainant is registered owner of bus bearing registration No. HR58-4835 which was insured with the OP vide comprehensive policy bearing No. 353503/31/09/01/00001319 valid from 9.7.2009 to 8.7.2010 for a sum insured of Rs. 3,60,000/-(Annexure R-4) and paid a premium of Rs. 20257/-. It is further not disputed that surveyor and loss assessor A.K.Chhatwal was deputed and Rs. 62125/- was assessed on “Net Loss on Repair Basis” after applying the relevant depreciation clause and subject to terms and conditions of the insurance policy in question as Annex. R-8

9.                     Learned counsel for the complainant hotly argued that the complainant society has suffered loss to the tune of R. 2,01,150/- but on asking of the OP Insurance Company complainant submits the bill to the tune of Rs. 1,21,711/- only to which the complainant was not agreed, even then OP Insurance Company has not made the payment to the complainant. Counsel for the complainant further argued that the OP Insurance Company has not filed any cogent evidence to prove that the complainant has received any amount from the previous insurance company claimed 50% NCB ( No Claim Bonus) on the wrong and false declaration in proposal form from the OP Insurance Company and draw our attention towards proposal form Annexure R-2 wherein, it is nowhere mentioned that the complainant has made any false representation. Neither such type of question was asked by the agent from the complainant nor anything has been mentioned regarding NCB in the proposal form. i.e. the column is left blank. Hence, no question arise to make false information at the time of taking insurance policy from the OP and further draw our attention towards Annexure R-9 letter dated 9.10.2009 written by OP Insurance Company to Oriental Insurance Company Ltd. i.e. previous insurance company in which it has been specifically mentioned by the complainant that a claim was lodged in the previous policy but later on the claim was withdrawn without receiving any amount and further draw our attention towards Annexure R-10 letter written by complainant to the Oriental Insurance Company in which the complainant has withdrawn claim lodged with the previous insurance policy i.e. Oriental Insurance Company. Meaning thereby that the complainant has not received any claim from the Oriental Insurance Company Ltd. and lastly prayed that as the complainant had withdrawn claim from the previous insurance company. Hence, the OP company i.e. New India Insurance Company Ltd. is liable to pay the claim of Rs. 2,01,150/- on account of damage of bus belonging to complainant.

 10.                  On the other hand, learned counsel for the OP argued at length that the contract of the insurance is based upon utmost good faith and confidence and the information which are strictly within the knowledge of a party to the contract must be intimated to the insurance company at the time of proposing of insurance policy. In this case, it was in the knowledge of complainant at the time of taking the insurance policy from New India Assurance Company i.e. OP that it had availed 50% NCB by not disclosing this fact which is evident from Annexure R-2 Proposal Form, Annexure R-9 Letter, Annexure R-10 letter for withdrawal of claim.  The complainant knowingly and intentionally misrepresented the OP i.e. New India Assurance Company Ltd. hence, it is clear cut violation of the terms and conditions of the policy and General Regulation No.27 of Indian Motor Tariff and on account of said reason the claim of complainant has been rightly repudiated. However, an amount of Rs. 62125/- has been assessed by the surveyor which is evident from surveyor report Annexure R-7 and R-8 and it is settled law that credence should be given to the report of surveyor. Learned counsel for the OP referred the case law titled as Brij Bhushan vs. National Insurance Company Revision Petition No. 33 of 2012 decided on 2.8.2012 by the Hon’ble National Commission, New Delhi. Further referred the case law titled as National Insurance Company Limited Vs. Onkar Nath Sharma FA No. 3496 of 2007 decided on 28.5.2009 by the Hon;ble State Commission, Haryana, Panchkula and further referred the case law titled as Tata AIG General Insurance Company Vs. Gulzari Singh, Revision Petition No. 1255 of 2009 decided on 26.2.2010 by the Hon’ble National Commission, New Delhi,  and also referred the case law titled as National Insurance Company Ltd. vs. Nand Kishore, First Appeal No. 2334 of 2006 decided on 22.6.2011 by the Hon’ble State Commission, Haryana, Panchkula. Lastly prayed that the complaint of the complainant is liable to be dismissed.

11.                   We have gone through the arguments advanced by both the counsels and law cited by both the parties, it is admitted fact that complainant has taken the benefits of 50% on account of No Claim Bonus at the time of obtaining the insurance policy from the OP. The only dispute between the parties is that the complainant has deliberately and fraudulently mis-represented and mis-lead the OP company while getting the benefits of 50% NCB and breached the principle of utmost good faith which is foundation of the contract of insurance in question. To prove this fact the insurance company has filed the proposal form Annexure R-2 and letter written to the previous insurer on 9.10.2009 Annexure R-9 and letter written by complainant to the previous insurer regarding withdrawal of claim Annexure R-10. We have perused these letters and proposal form minutely and carefully. From the perusal of Annexure R-2 proposal form it is evident that complainant has not made any declaration that he received or not received the claim from the previous insurer and at page No.5 of this Form only particulars of previous insurance has been mentioned in the proposal form Annexure R-2. All other columns including NCB columns mentioned in proposal Form Annexure R-2 are left blank i.e. neither there is mention as ‘Yes or No’.. When the specific question/column is left blank in the proposal form then how it can be said that the complainant has mislead or misrepresented the OP Insurance Company. Further from the letter dated 27.8.2009 Annexure R-10, it is clear that complainant has withdrawn his claim without getting any amount from the previous insurer. So, mere lodging any claim does not prove that the complainant has mislead the OP Company. Further from the perusal of Annexure R-3 Cover Note of previous insurer it is also evident that complainant had already availed NCB of 50% from the previous insurance company i.e. Oriental Insurance Company. The OP insurance company wants to take the benefit from the letter Annexure R-9 and R-10 in which Oriental Insurance Company has mentioned that a claim was lodged but later on, claim has been withdrawn and further in Annexure R-10 complainant himself has written to the previous insurance company regarding withdrawal of his claim but the OP insurance company totally failed to produce any cogent evidence that complainant had received any amount from the previous insurance company on account of any damage to the bus bearing No. HR-58-4835. Even the OP Company failed to disclose on what ground the complainant has lodged the claim with the previous insurance company. Further more we have perused the GR No.27 of Indian Motor Tariff where it is nowhere mentioned that the insured will not be entitled to get any accidental benefits from the insurer if any claim had been lodged or had been claimed from the previous insurer. GR No.27 of the Indian Motor Tariff only relates to granting the NCB as a bonus to the owner of the vehicles. Even we could not noticed any terms and conditions incorporated in the Insurance Policy in question in respect of NCB which had been violated by the complainant.

12.                   We are not disputing the law referred by the counsel for the OP. However, the facts of the present case are different because in all the authorities referred by the counsel for OP, the owner of vehicle had received the claim amount in the previous insurance policy but in the present case the complainant/insured has not received any claim amount on account of damage from the previous insurance company regarding the vehicle in question.

13.                   After going through the above noted facts and circumstances of the case, we are of the considered view that as the complainant has not actually received any payment or claim from the previous insurer i.e. Oriental Insurance Company. Hence, the OP company has wrongly repudiated the claim of complainant, which constitute deficiency in service on the part of OP.

14.                   The contention of the complainant that he has spent Rs. 2,01,150/- on repair of the bus in question is not tenable to our mind as it is settled proposition of the law that credence should be given to the surveyor report and the complainant also failed to point out any discrepancy or ambiguity in the surveyor report. The complainant failed to file any report of expert/ surveyor to prove the amount of Rs. 2,01,150/-whereas OP has filed surveyor report duly supported by Surveyor Affidavit Annexure R-7 & R-8 in which an amount of Rs. 62125/- has been assessed.  Hence, the complainant is entitled for Rs. 62,125/- on account of damage of his bus bearing registration No. HR-58-4835.

15.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs. 62,125/- to the complainant alongwith interest at the rate of 9% per annum from the date of repudiation of claim i.e. 27.1.2010 till its realization and also to pay Rs. 5,000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law.  Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 12.10.2015

                                                             

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.