Chandigarh

StateCommission

A/135/2016

Liberty Videocon General Insurance Company Limited - Complainant(s)

Versus

Nidhi Saini - Opp.Party(s)

Paras Money Goyal & Gaurav Sharma, Adv.

06 Jul 2016

ORDER

   STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	135 of 2016
Date of Institution	04.05.2016
Date of Decision	06.07.2016

 

1.        Liberty Videocon General Insurance Company Limited, SCO No.174-175, First Floor, Sector 9-C, Chandigarh, through Sh. Jatindra Jain, Manager (Legal).

 

2.        Liberty Videocon General Insurance Company Limited, 10^th floor, Tower-A, Penisula Business Park, Ganpatrao Kadam Marg, Lower Parel, Mumbai – 400013.

                                        …..Appellants/Opposite Parties

                                Versus

Nidhi Saini W/o Sh. Vikash Saini, r/o H.No.5, Sector 4, HUDA Colony, Naraingarh, District Ambala (Haryana).  

                                        …..Respondent/Complainant.

BEFORE:    SH. DEV RAJ, PRESIDING MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh. Paras Money Goyal, Advocate for the appellants.

Sh. Nitin Gupta, Advocate for the respondent.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 01.03.2016, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short ‘the Forum’ only), vide which, it allowed Consumer Complaint bearing No.114 of 2015 with the following directions :-

“10.   In view of the above discussion, we are of the opinion that the complaint must succeed. The same is accordingly allowed. The OPs are directed to pay Rs.1,59,134/- being net liability as assessed by the Surveyor (Ann. OP-3), to the complainant. The OPs are also directed to pay a compensation of Rs.7,000/- for causing mental & physical harassment to the complainant, apart from paying litigation cost of Rs.5,500/-.

11.               This order be complied with by the OPs within a period of 45 days from the date of receipt of copy of this order, failing which they shall be liable to pay the awarded amounts to the complainant along with interest at the rate of 12% p.a. from the date of this order till its actual payment, apart from paying litigation cost.”

2.             The facts, in brief, are that the  complainant purchased Toyota Fortuner car bearing registration No.HR02-AB-0028, which was insured with Future Generali India Insurance Company Ltd. from 18.11.2013 to 17.11.2014 (Annexure C-2) and, thereafter, the same was got insured from the Opposite Parties for the period from 18.11.2014 to 17.11.2015. Copy of the cover note issued by the Opposite Parties is Annexure C-3. It was stated that the cheque given by the complainant to Opposite Party No.1 towards insurance premium was dishonoured on account of signatures mismatch and, therefore, the Opposite Parties cancelled the cover note. Copy of the letter dated 24.11.2014 issued by the Opposite Parties in this regard is Annexure C-4. After dishonouring of the cheque, the complainant paid the insurance premium amount of Rs.41,943/- to the Opposite Parties, in cash, on 22.11.2014 and, therefore, they issued fresh cover note for the period from 22.11.2014 to 21.11.2015 (Annexure C-5) for the vehicle, in question.  It was further stated that during the subsistence of the Policy, the car of the complainant met with an accident and got damaged. Intimation in this regard was given to the Opposite Parties on their toll free number and as per advice of Opposite Party No.1, the complainant took the vehicle to Em Pee Motors Ltd. (authorized dealer of Toyota). It was further stated that the Opposite Parties assured the cashless claim facility to the complainant at Em Pee Motors Ltd. but when the car was repaired, instead of providing cashless claim facility, they asked the complainant to make the payment of repairs to get the vehicle released. Copy of invoice dated 06.12.2014 of Rs.1,61,616/- is Annexure C-6. However, the claim lodged with the insurance company was repudiated vide letter dated 09.12.2014 (Annexure C-7) on the ground that the complainant had made wrong statement and declaration in the proposal form regarding No Claim Bonus (NCB).  According to the complainant, the repudiation of the claim by the Opposite Parties is unjustified and illegal. Therefore, the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.             In their written statement, the Opposite Parties, while admitting the factual matrix of the case, stated that on receipt of the intimation regarding the accident from the complainant, the Surveyor was appointed, who assessed the loss to the vehicle, in question, to the tune of Rs.1,59,134/- vide his survey report (Annexure OP-3). It was further stated that on verification of the NCB benefit entitlement with the previous insurer i.e. Future Generali India Insurance Co. Ltd., it was revealed that the complainant had already made a claim under the previous policy and, as such, she was not entitled for NCB Benefit on the insurance contract obtained from the replying Opposite Parties.   It was further stated that in view of the statement/declaration made by the complainant in the proposal form pertaining to the NCB benefit found to be incorrect and untrue, so, the claim of the complainant was rightly repudiated by the Opposite Parties vide letter dated 09.12.2014 (Annexure C-7).  Reliance was also placed upon the GR-27 of the Indian Motor Tariff. It was further stated that the replying Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.

4.             The complainant filed rejoinder to the written statement of the Opposite Parties, wherein, she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

5.             The parties led evidence, in support of their case.

6.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the Forum, allowed the complaint, as stated above. 

7.             Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

8.             We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

9.             While filing the appeal, Counsel for the appellant/Opposite Parties submitted that in the proposal form, under the column of previous insurance details, the complainant represented that her vehicle was previously insured with Future Generali India Insurance Co. Ltd. and she had not made any claim with the said Insurance Company and availed NCB benefit to the extent of 20%.   However, later on it came to light that the complainant took the claim from the previous Future Generali India Insurance Co. Ltd. and, as such, she was not entitled to NCB of 20%. He further submitted that the claim of the complainant was inadmissible as policy was obtained by her by misrepresenting and/or concealment of material facts and, thus, claim was rightly repudiated by the appellants vide their letter dated 09.12.2014. He further submitted that the complainant, who concealed her previous claim history and obtained No Claim Bonus benefit might be deliberately putting different signatures under NCB declaration with an intention that in case she makes claim, she would be able to deny such declaration being made and, thus, would get undue benefit in both circumstances. He further submitted that if the complainant disputed her signatures on the proposal form, she ought to have led expert evidence in this regard.  He further submitted that the Forum while passing the impugned order ignored the proposal form, which is basic requirement for any insurance contract and obtained by insurer from proposer in routine course of its business. He prayed for allowing the appeal and setting aside the impugned order.

10.           On the other hand, Counsel for the respondent/complainant submitted that the Forum rightly passed the impugned order as per law and denied the allegations levelled by the Counsel for the appellants against the respondent/complainant. He prayed for dismissal of the appeal filed by the Opposite Parties.

11.           After going through the evidence and record of the case and after hearing the Counsel for the parties, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter.

12.           The core question, that falls for consideration, is, as to whether, the appellants/Opposite Parties rightly repudiated the claim of the complainant vide letter dated 09.12.2014 (Annexure C-7). The answer, to this, question is in the negative. Admittedly, the complainant purchased the car bearing registration No.HR02-AB-0028, which was earlier insured with Future Generali India Insurance Company Limited from 18.11.2013 to 17.11.2014 vide Policy (Annexure C-2). Annexure C-3 is a copy of cover note issued by the Opposite Parties. From this document, it is proved that the vehicle of the complainant was, thereafter, insured with the Opposite Parties vide cover note valid from 18.11.2014 to 17.11.2015. Annexure C-4 is a copy of letter dated 24.11.2014, which was written by the Opposite Parties to the complainant, informed her that the cheque of Rs.41,943/- given by her on account of insurance premium, was dishonoured. According to the complainant, after receipt of the information from the Opposite Parties regarding dishonouring of the cheque, she paid the insurance premium amount of Rs.41,943/- in cash on 22.11.2014 and, as such, fresh cover note valid from 22.11.2014 to 21.11.2015 was issued by the Opposite Parties. It is also the admitted fact that the vehicle of the complainant met with an accident and, as such, she took the vehicle to the authorized service centre of Toyota i.e. Em Pee Motors Limited, which was duly repaired by it, and prepared the repair bill of Rs.1,61,616/- (Annexure C-6). The said amount was paid by the complainant from her own pocket vide receipt (Annexure C-9). It was also the admitted fact that when the complainant lodged the claim with the Opposite Parties, the same was repudiated vide letter dated 09.12.2014 (Annexure C-7) on the ground that the complainant had made wrong statement and declaration in the proposal form pertaining to No Claim Bonus.

13.           The complainant in para No.6 of the complaint has specifically stated that No Claim Bonus was wrongly given to her due to the negligence of the underwriting staff of the Opposite Parties and she was not at fault and when it came to her notice that wrong NCB was given by the Opposite Parties, she immediately deposited Rs.13,372/- to the Opposite Parties towards wrongly given 20% NCB. Without obtaining any declaration/statement from the complainant regarding the NCB, a copy of the amended policy was issued by the Opposite Parties, which is attached as Annexure C-8. A bare perusal of Annexure C-8 clearly reveals that No Claim Bonus is shown as 0%.  Even the complainant in para No.2 of her rejoinder has specifically stated that the Opposite Parties never obtained any declaration from the complainant regarding No Claim Bonus and while issuing the insurance cover note, the Opposite Parties did not ask for any information from her and issued the insurance cover note on the basis of previous policy of Future Generali India Insurance Co. According to the complainant, the Opposite Parties never obtained her signatures on the insurance cover note or on any other declaration form, rather they forged her signatures on the proposal form.  Now the plea of the appellants/Opposite Parties that if the complainant disputed her signatures on the proposal form she could seek expert evidence, has no value, at all because the complainant denied her signatures on the proposal form and the onus to prove that the signature on the proposal form is of the complainant or not, was the duty of the Opposite Parties but they failed to do so. So, we are of the view that the District Forum while passing the impugned order had rightly held that once it has been specifically denied by the complainant that the proposal form/declaration does not bear her signatures then the onus to prove the same is reverted back to the insurer, who denied its liability under the insurance policy, to establish that the proposal form bears the signatures of the complainant. Even the appellants/Opposite Parties never filed any application for appointment of any handwriting expert/fingerprint expert to prove this fact. Moreover, the respondent/complainant in her rejoinder has stated that the Opposite Parties neither obtained her signature on the insurance cover nor on any other declaration form. It is pertinent to note that the original copy of Annexure OP-1, is with the complainant and the same was attached with the rejoinder. A bare perusal of both the documents i.e. Annexure OP-1 and the original one, attached with the rejoinder, by the complainant, clearly reveals that there is no signature of the complainant on the original document, attached with the rejoinder, whereas, Annexure OP-1 attached by the Opposite Parties, with their written statement, shows that the said document was signed by the name of ‘NIDHI’. It is not understandable that how it is possible that original one was unsigned and its photocopy was signed document. If Annexure OP-1 attached by the Opposite Parties is a valid document, then the signature of the complainant must be on the original of Annexure OP-1 attached by the complainant with her rejoinder but it is not so. So, it is clearly proved that the signature of the complainant was forged by someone.  Even the complainant, in her rejoinder, has specifically denied of receipt of the policy document alongwith its terms and conditions. The appellants/Opposite Parties failed to place on record any document to prove that the said policy alongwith terms and conditions were supplied to the complainant. Moreover, the Forum rightly held that the Opposite Parties already received the deficit premium from the complainant and benefit under Section 1 of the policy has already been reinstated. It is also relevant to note that the Surveyor appointed by the Company assessed the liability of the Opposite Parties to the tune of Rs.1,59,134/- vide its report (Annexure OP-3). The Forum has thus rightly rejected the plea of the Opposite Parties regarding misstatement in the proposal form by the complainant. Therefore, we are of the view that the Forum has rightly passed the impugned order and directed the Opposite Parties to pay an amount of Rs.1,59,134/- being net liability as assessed by the Surveyor (Annexure OP-3) alongwith compensation and litigation expenses.

14.           Keeping in view the facts and circumstances of the case, we are of the considered view that the Forum was right, in granting relief to the complainant, as stated above.  Hence, the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

15.           For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the Forum is upheld.

16.           Certified Copies of this order be sent to the parties, free of charge.

17.           The file be consigned to Record Room, after completion.

Pronounced.

06.07.2016                                                               Sd/-

 (DEV RAJ)

PRESIDING MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

rb