DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 442/2016

No. DC/ Central/

vs.

Coram:       Ms. Rekha Rani, President

                    Shri Vyas Muni Rai, Member

                   Ms. Shahina, Member (Female)

ORDER

Shri Vyas Muni Rai, Member

1. In the present case Shri Gurnam Singh (in short complainant) had earlier filed complaint no. 735/2008 impleading 1. the managing Director/ Concerned Official, The Oriental Insurance Co. Ltd., Connought Place, New Delhi (in short OP1) and 2. The Oriental Insurance Co. Ltd., Oriental House, (in short OP2) with following prayer:-

1. The respondent no. 1 may kindly be directed to sanction the aforesaid insurance claim of the claimant/complainant qua the impugned vehicle bearing registration no. CH-03R-0708.
2. And to pay a sum of Rs. 1 lac to the complainant as damages on account of causing harassment, humiliation and mental agony to him with the interest of 18% per annum from the date of filing the insurance claim till its realization.
3. And to direct the respondent to award the exemplary cost of Rs. 25,000/- in favour of complainant.
4. And/or any other order as may be deemed fit and proper may also be passed.

The then Ld. Presiding Officer/President of this Court vide his order/judgement dated 17.08.2011 had disposed of the said complaint with the operational part of the order as under:-

“in the circumstances, we direct the case of the complainant will be looked into at senior level officer of OP, and it will pass the claim and settle the insurance by accepting NCB mistakenly claimed or by adjusting against the claim. This be done within 60 days. The non-looking into the case of complainant is deficiency of service and we award a sum of Rs. 20,000/- to the complainant for harassment, mental tension and litigation expenses.”

2. In view of the aforesaid earlier order/ judgement, the OP processed and sanctioned the claim only for a sum of Rs. 3,73,996/- against the claim of Rs. 5,65,000/- along with interest and other charges as the vehicle was insured for the aforesaid amount as alleged by the complainant. Feeling aggrieved, the complainant has filed a fresh and instant complaint being complaint No. 456/2012. Perusal of the record shows that initially the complaint was filed before District Forum VI, New Delhi District and vide order dated 15.11.2016 in TC 68/16 Hon’ble State Commission transferred the case to this Commission and directed parties to appear before this Commission on 16.01.2017. Instant and fresh complaint has been filed with the following prayer and direction to be issued to OP:-

1. To make the payment of remaining amount of claim of insurance alongwith interest @ 18 % p.a. w.e.f. his entitlement for the same in the matter and
2. To pay Rs. 1,00,000/- as damages for harassment and humiliation caused to him and
3. Further to pay Rs. 21,000/- towards legal expenses within and
4. And/ or any other order as may be deemed fit and proper may also be passed.
   3. Prior to the filing of instant complaint, complainant had also sent the legal notice to the OP.
   4. In the WS, OP has taken the stand that the claim of the complainant was duly processed and thereafter it was repudiated for the reasons detailed in the letter dated 20.03.2008 (copy of repudiation letter placed on record). OP has further taken the stand that decision taken by the OP’s company is fully justified and has further stated that the present issue has been decided by the Court while passing order dated 17.08.2011 in case No. 735/2008 as earlier filed by the complainant and accordingly OP deposited a cheque bearing no. 338628 dated 21.10.2011 for a sum of Rs. 3,63,133/- in favour of the complainant after recovery of NCB for Rs. 30,863/-. This has also been admitted and encashed by the complainant. OP has further submitted that the present complaint filed before the Hon’ble Forum is misconceived, not-tenable and is as an abuse of the process of law and ought to be rejected. OP has also pleaded in its reply that if the complainant was not satisfied with the compliance of the OP, he should not have encashed the cheque amount of Rs. 3,63,163/- and rather should have prefered an appeal before the appellate jurisdiction. Therefore, OP has taken the stand that there is no deficiency in service on the part of the respondent in processing claim of the complainant in compliance of the order dated 17.08.2011 passed by this Hon’ble Court and has pleaded that the Hon’ble Forum may be pleased to dismiss the complaint as no cause of action has arisen against the OP.
   5. Further, at this stage, it would be relevant to refer main grounds of repudiation mentioned in the letter dated 20.03.2008 as under:-

“1. At the time of insurance of above vehicle in 2005, you had made a wrong declaration as to use of the vehicle. The vehicle was Registered as LMV (T) but this fact was never disclosed and even by declaring in the Proposal form that the vehicle will not be used for commercial purposes you led us to believe that it was a private vehicle and obtained the cover for a private car which amounts to misrepresentation of the facts.

2. At the time of obtaining insurance of above vehicle in 2005, you have produced NCB certificate of another person and wrongly availed NCB of 65% of this car.

3. At the time of accident on 01/02/2007 the vehicle was alleged to be driven by Sh. Payra Singh who was having Driving Licence as LMV-NT. Since the vehicle was registered as LMV (T) hence the licence was not valid for the type of vehicle.

4. You had changed the version of the accident while giving statement to the investigator. In the first intimation and in the cliam form there was no mention of the tyre burst. Even in the intimation to the police and in surveyor report there was no such mention. This was the true version only as it was immediate and without any after thought. Thus you tried to exaggerate the loss. This was against the principles of “Utmost Good Faith” & ‘Indemnity’.

6. In response to the Written Reply of OP, the complainant has filed rejoinder, wherein, it has, inter alia, taken the stand that:-

a.       Claim of the complainant has not been processed as per law and in terms of the fact of the case. Nor the order/judgement dated 17.08.2011 of this Hon’ble Forum in case no. 753/2008 (of which the present case is the off-suit) has been followed in its true spirit;

b.      After the said order dated 17.08.2011 of this Hon’ble Forum no comment is warranted by the OP on the merits of the case, when the matter has already been adjudicated in favour of the complainant.

c.       Case of the complainant has not been looked into in proper prospective in terms of the above mentioned order dated 17.08.2011 of this Hon’ble Court, since the complainant is entitled to the claim of Rs. 5,65,000/- (along with interest and other charges), as already stated in his earlier complaint but he has been issued cheque for a sum of Rs. 3,73,996/- after recovery of NCB for Rs. 30,863/-. It is submitted that no calculation whatsoever has been supplied by the OP, reflecting as to how the said amount was sanctioned/ calculated despite specific directions of this Court.

d.      It is worth mentioning here that the complainant is not aggrieved by the order dated 17.08.2011 of this Hon’ble Forum, rather he is aggrieved the way this order has not been complied with by the OP, which itself amounts to deficiency in service. It is in this scenario that the present complaint has been filed, since appeal to the appellate forum is maintainable only if there is any defect in the impugned order/ judgement which was lacking in the present case.

7. It is the case of the complainant that he is the registered owner of Toyota Innova car bearing no. CH-03R-0708 which he got insured from the respondent company w.e.f. 28.03.2006 for a period of one year from the Oriental Insurance Company Ltd. and the said vehicle met with an accident on 01.02.2007.  The stand of the OP that the vehicle under reference was used for the commercial purpose has been denied and in support of this, the complainant has submitted photocopy of the document addressed to the RTO Chandigarh, wherein vide endorsement dated 19.03.2008 on request letter of complainant, RTO authority of Chandigarh has written that “as per our file record, the vehicle No. CH-03R-0708 only for personal use. Not for commercial.” The stand of the OP in its repudiation letter dated 20.03.2008 wherein, inter alia, it is mentioned that at the time of obtaining insurance of vehicle in 2005, complainant wrongly availed 65% of NCB on the said vehicle by producing the NCB certificate by another person. For this the complainant in his letter has explained about inadvertent mistake of producing the certificate of his own son instead of his own and pointed out even the contributory negligence of the concerned officer of the respondent staff also in this behalf. However, complainant further offered to deposit the difference amount or in the alternate requested to adjust the same at the time of grant of the claim to the complainant. The complainant has also denied the rest of the grounds given in the repudiation letter dated 20.03.2008 by the OP. It is further the case of the complainant that even the body of the vehicle, which was heavily damaged in the accident was sold by the company.
8. We also find on record photocopy of the insurance letter, wherein, it is evident that the insured amount of the vehicle under reference was for Rs. 6,55,000/-. Perusal of the record further shows that the grounds of repudiation letter dated 20.03.2008 of the OP has been clearly explained by the complainant in its legal notice and other documents available on record.
9. At this stage, we would like to refer a judgement in the case of National Insurance Co. Ltd. Vs Harpreet Singh, Revision Petition No. 3216 of 2012 decided on 08.02.2016. When getting insurance policy in dispute, the owner had not disclosed the fact of getting claim from the previous insurer and obtained ‘no claim bonus’. By making reference to the provisions of GR-27 of Indian Motor Tariff, it was observed as under:-

“On reading of the above, it is clear that where the insured is unable to produce the evidence pertaining to his No Claim Bonus entitlement, he may be permitted to give a declaration in support of his No Claim Bonus. It is further provided in the tariff that notwithstanding the above declaration, the insurer allowing the No Claim Bonus shall be under obligation to write to the policy issuing office of the previous insurer seeking confirmation of entitlement of the insured and the rate of No Claim Bonus and previous insurer shall be under obligation to respond to said query within 30 days. It is further provided that failure of the insured granting No Claim Bonus to write to the previous insurer within 21 days shall constitute the breach of tariff. In the instant case, admittedly no communication was sent by the petitioner to the previous insurer within 21 days after granting the insurance cover to the insured. This obviously amounts to breach of tariff on the part of the petitioner insurance company and disentitle the insurance company to take shelter of the plea of misrepresentation of facts on the part of the petitioner. However, the fact remains that respondent complainant on the basis of false declaration given to the petitioner paid 25% less premium. Therefore, the equity demands that bonus payable to the complainant in respect of his insurance claim should be decreased by 25%.”

10. Since complainant had made misrepresentation about no-claim bonus he is not entitled to the entire claim. OP can also not benefit from its own default. We are, therefore, of the view that claim of the complainant should be reduced to the extent of NCB claimed by complainant wrongfully.
11. It is further mentioned that the OP had paid the amount of Rs. 3,73,996/- after recovery of NCB for Rs. 30,883/- as mentioned in its WS, therefore, issue of NCB stands settled.

12. It would be pertinent to refer the order dated 17.08.2011 passed by the Ld. Predecessor of this Court in complaint case 735/2008 filed initially (supra) from the said order, it seems that case of the complainant has not processed accordingly resulting in filing of the present complaint by the complainant.

13. We have carefully gone through the WAs and affidavits for evidence submitted on record by both the parties, wherein more or less there are repeatation of the stand of the parties already taken in their complaint/ WS. 

14. We have also considered the written and oral submissions and counter submissions of both the parties and documents available on record and we find that there is deficiency on the part of the OP in processing the claim of the complainant in accordance with the order dated 17.08.2011 passed by the Ld. Predecessor /President of this Commission.
15. In view of the aforesaid discussion, we order the OP as under:-

1. To process the remaining amount of claim of insurance along with 6% of interest per annum from the date of filing of the instant complaint till the date of realization.
2. To pay Rs. 10,000/- as damages and towards legal expenses.

OP is further directed to make the payment of the aforesaid awarded amount within 30 days from the receipt of this order.

16. Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced on this 16^th September of 2022.