BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.123 of 2018.
Date of institution:-12.09.2018.
Date of decision :- 27.02.2020
Pritam aged about 28 years son of Sh.Rajpal, resident of village Dinod, Tehsil & District Bhiwani.
...Complainant.
Versus
National Insurance Company Limited, having one of its branch office at Clock Tower, Circular Road, Bhiwani Tehsil & District Bhiwani through its Manager/authorized signatory.
…Opposite party.
Complaint under section 12 of
Consumer Protection Act, 1986
Before: Sh. Nagender Singh, President.
Sh. Shriniwas Khundia, Member
Present: Representative of the complainant.
Sh.R.K.Sharma, Advocate for OP.
ORDER
NAGENDER SINGH, PRESIDENT
In nutshell, the facts of the complaint are that the complainant is owner of Pulsar Motor cycle bearing registration No.HR-16R-9791 and the same was insured with opposite party vide policy No.39001231173201925500 having validity from 08.08.2017 to 07.08.2018. On 28.10.2017, the vehicle met with an accident and got damaged. Due intimation was given to the opposite party and the surveyor appointed by the insurance company also given estimate besides collecting all the relevant documents/papers from the complainant and thereafter the repairing of the vehicle was got done from M/s Shree Shyam Bajaj after spending a sum of Rs.14,850/-. Requisite documents alongwith bills were submitted to the insurance company with a request to settle the claim but the same was denied in the last week of July, 2018 as No claim. The act and conduct of the opposite party clearly amounts to deficiency in service on its part. Hence, this complaint.
2. On notice, opposite party appeared and filed its reply wherein preliminary objections such as maintainability, locus standi and suppression of material facts from this Forum etc. have been taken. It has been submitted that the vehicle bearing No.HR16-R-9791 was insured with the insurance company and the complainant/insured had made a declaration to the effect that previous insurance policy was claim free and a rebate of Rs.204/- (20 % as No claim bonus) was given to the complainant/insured. It has been further submitted that after intimation regarding the damage of the vehicle in the accident, surveyor was appointed who had assessed net loss to the tune of Rs.12220/- but while settling the claim it was observed that the complainant had claimed 20 % No Claim Bonus at the time of renewal of policy and the previous insurance company i.e. Oriental Insurance Company has confirmed that against policy No.261202312017/2424 all the benefits stand forfeited as per G.R.No.27 of Indian Motor Tariff but the complainant had given false declaration for availing the NCB @ 20 %, therefore, the claim of the complainant has rightly been denied as No claim and the same was conveyed to the complainant vide letter dated 21.05.2018. There is no deficiency in service on the part of opposite party. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
3. The parties have led their evidence in the form of affidavit and documents. The complainant has tendered in evidence affidavit Ex.CW1/A and documents Annexure C1 to Annexure C4 and closed the evidence on 02.09.2019 whereas the opposite party has tendered documents Annexure R1 to Annexure R7 and closed the evidence on 06.02.2020.
4. Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsels for opposite party reiterated the averments made in the reply and prayed for dismissal of the complaint.
5. It is admitted fact that the vehicle in question was got insured by the complainant with the opposite party having validity from 08.08.2017 to 07.08.2018. It is also admitted fact that the vehicle in question met with an accident on 28.10.2017 during the operation of policy. The only ground for repudiation of the claim of the complainant by the opposite party is that he had obtained 20 % NCB (No Claim Bonus) despite the fact that he was not eligible for the same as all the benefits qua the previous policy were stands forfeited as per Section GR 27 of Indian Motors Tariff. This plea of the opposite party is not tenable at all as the insurance company must be very careful at the time of issuance of insurance policy, because lateron it has to pay the claim, if any arisen out of the policy issued by it. On this point reliance can be taken from case law titled as Branch Manger, NIC Vs. Naresh Kumar decided by Hon’ble National Commission in RP No. 1836 of 2016 on 18.04.2017 wherein it has been held that
“a. The cases in which it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and the insurer had means to verify the correctness of the declaration of the insured seeking No Claim Bonus by exercising ordinary diligence of verifying the truthfulness of the claim from the insurer’s own record, Exception to 19 of Indian Contract Act would come into play and the insurer would not be justified in repudiating the insurance claim on the ground of misrepresentation or concealment of fact. However, because the insured had taken benefit of No Claim Bonus and paid less premium, the insurance claim would be reduced proportionately”.
“b. In cases of the insured taking the insurance policy of the vehicle from new insurance company and it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and where the insurer had failed to seek confirmation regarding correctness of the declaration submitted by the insured in support of plea for No Claim Bonus within the stipulated period as provided in GR 27 of Indian Motor Tariff, the insurer would not be justified in repudiating the insurance claim. However, because the insured had taken benefit of No Claim Bonus by making false declaration his insurance claim would be reduced proportionately”.
Hon’ble National Commission has partly allowed complaint directing the insurance company to pay the claim amount after deducting 20% from the claim amount”.
6. Admittedly, the Surveyor in his report Annexure R-7 has assessed the net loss to the tune of Rs.12220/- after deducting the less policy clause of Rs.750/-.The surveyor is an independent person. So, this report of surveyor is taken into consideration for deciding the compensation amount in the complaint. In this regard, learned counsel for the complainant has rightly relied upon the case laws titled as Davender Malhotra Vs. United India Insurance Company Limited & Another 2016 (3) CLT 525 (NC) and Jose Manuel De Souza Vs. New India Assurance Company Limited 2016 (4) CLT (Goa State Consumer Disputes Redressal Commission) 171 wherein it has been held that It is an established legal proposition that the report made by the surveyor, who is a professional in his field, cannot be disbelieved, unless there are cogent and convincing reason to do so. Since there is nothing on record to brush aside the report of the surveyor, therefore, this Forum has left with no other option but to rely upon the report of surveyor, therefore, the complainant is entitled to payment of amount assessed by the surveyor after deduction of 20% from the said amount i.e. Rs.12220/-, which comes to Rs. 9776/-.
7. Thus, in view of above discussion, we partly allow the complaint and direct the opposite party/insurance company to pay Rs.9776/- (after deduction of 20 % from Rs.12220/- as assessed by the surveyor) to the complainant alongwith interest @ 9 % from the date of filing of the complaint till its realization and further to pay Rs.3,000/- as lump sum compensation on account of harassment, mental agony and costs of litigation charges. Order be complied within 30 days from the date of order. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.
Announced in open Forum.
Dated: - 27.02.2020.
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Forum, Bhiwani.
