Haryana

Ambala

CC/542/2010

KUNDAN LAL - Complainant(s)

Versus

OIC CO. - Opp.Party(s)

C.M.Sehgal

27 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

           Complaint Case No.    : 542 of 2010

Date of Institution       :  29.12.2010

           Date of Decision         :  27.04.2016

 

Kundan Lal son of Sh. Ram Nath of M/s Kundan Lal and sons Mahendi Pur Road, Balachaur, District Nawa Sahar ( Punjab), through its attorney Sh. Jatin Uppal son of Sh. Prem Parkash Uppal R/o H.No.216, Palika Vihar, Ambala City.

                                                                                                                                                            ……Complainant.

                                                                                                         Versus

              1.         Branch Manager, The Oriental Insurance Company Limited, Ambala City.

2.         Branch Manager, The Oriental Insurance Company Limited Balachaur, District Nawa Sahar ( Punjab).

3.         Branch Manager, The Oriental Insurance Company Limited, Regional Office, SCO 109-110-111, Sector-17 D, Chandigarh.

                                                                                                ……Opposite Parties

Complaint Under Section 12 of the Consumer Protection Act

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.            

Present:          Sh. C.M. Sehgal, Adv. counsel for complainant.

                        Sh. R.K. Vig, Adv. counsel for Ops.

ORDER.

                        Present complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter in short called as the ‘Act’) has been filed by the complainant alleging therein that he is owner of a Santro Car Model 2008 bearing  regn. No.PB20A/9924 which was insured with the OP company w.e.f. 12.02.2010 and prior to this, the said car was insured with Bajaj Allianz vide policy No.BZ0801393817 valid upto 11.02.2010.  It has been alleged by the complainant that he came to Ambala City to meet his daughter Rajni on 12.02.2010 by the said car and parked it with due care & lock outside the residence of his son-in-law Jatin Uppal and they all went to Delhi by bus. On 17.02.2010, while returning back, it was found that car was not parked outside the residence. So, his son-in-law searched the car but was not able to know whereabouts of the car. Therefore, Jatin Uppal informed the complainant in this regard since he was staying at Delhi and  also reported  the matter to the police whereupon FIR No.79 dated 17.02.2010 was registered at P.S. Ambala City under Section 379 IPC.  OP was informed qua theft of car who asked the complainant to obtain a clearance certificate from Bajaj Allianz regarding No Claim. Bajaj Allianz Co. issued the same and it was given to Ops alongwith all other documents. Complainant also submitted cancellation report & final report to the Ops on 19.10.2010 but the claim was not released. So, a legal notice was served upon the Ops wherein OP sent reply dated 27.10.2010 to the effect that claim would be settled very shortly but despite various visits and requests, the claim was not released.  Thus the complainant has alleged that Ops have played unfair trade practice and also caused mental agony & physical harassment to him  which is a deficiency in service on the part of Ops.  Hence, the present complaint  seeking relief as per prayer clause has been filed by the complainant.   

 2.                    Upon notice, OPs appeared through counsel and filed written statement raising preliminary objections qua non-maintainability of complaint. However, it has been submitted that No Claim Bonus is admissible to the party if in the preceding full year of insurance, neither any claim was made nor was pending and in such condition, insured was entitled to get only 20% of NCB which the complainant has already taken vide policy No.235402/31/2010/7704 effective during the period 12.02.2010 to 11.02.2011 and copy of the policy issued in favour of complainant clearly indicated concession of NCB was given to him. On merits, it has been admitted that at the time of incident vehicle was insured with them but complainant wrongly submitted undertaking that NCB was not taken from Bajaj Allianz General Insurance Company i.e. earlier insurer whereas as per record maintained by them, the complainant signed with a clear undertaking that his future claim be forfeited if the declaration made by him is found false and record of previous insurer  leave nothing in doubt  that complainant  has taken benefit of the NCB and thus has lost all rights by way of his conduct to forfeit the claim. As such, there is no unfair trade practice and deficiency in service on their part and prayed for dismissal of the complaint with costs.

3.                     To prove his contention, counsel for complainant tendered affidavit of complainant as Annexure CX and documents as Annexure C-1 to C-14  and closed the evidence whereas on the other hand, counsel for Ops tendered affidavit of Sh. B.R. Batra, Divisional Manager of OP company  as Annexure R-A alongwith documents as Annexures R-1 to R-6 and closed the evidence.

4.                     We have heard learned counsels of both the parties & have gone through the records very carefully.  Counsel for the complainant has argued that  the vehicle in question was stolen on 17.02.2010 and at that time the vehicle was insured with OP company but despite submitting all the required documents and completing formalities,  the OP has not released the insured declared value of the car in question to the complainant.

                        On the other hand, counsel for the OP has argued  that  the complainant has suppressed the material facts qua NCB while taking policy and submitted false declaration whereas in the previous policy with Bajaj Allianz Company,  a claim  was already registered against the policy.  Hence, his claim was not payable by them.  In support of their case, OP’s counsel placed reliance on case law rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as  Tata AIG General Insurance Company Ltd.  & Anr. Vs. Gulzari Singh II (2010) CPJ Pg. 272wherein it has been held that Consumer Protection Act, 1986, Section 2(1)(g)-Insurance-Suppression of material facts-Declaration regarding “No Claim Bonus” wrongly made by insured-insurance being contract of  uberrima fides, there must be complete good faith on part of insured-Attempt not to disclose details of claim obtained from previous Insurance Company clearly visible in documents produced on record- Contention, agent filled wrong information, not acceptable-Complainant not illiterate person having put his signature,. Role of agent brought only as after-thought-State Commission erred in awarding loss assessed by Surveyor –Order not sustainable-Set aside in revision.”

 5.                    At the very outset, it is not disputed by the OP company that the theft of vehicle took place on 17.02.2010 and at that time it was insured with them. However, the OP company  has not released the claim of complainant only on the ground that he has suppressed the facts  that ‘There are 1 claim already registered against the policy’ with the Bajaj Allianz Company as mentioned in document Annexure R-3. The counsel for OP has drawn our attention towards document Annexure R-4 which is proposal form filled by the complainant while taking policy with the Ops wherein complainant has himself undertaken in Column F(iii)  that “Past Claim experience/NCB Earned on Renewal 20%,  in case of wrong declaration of NCB/claim experience on prvious insurance, my future claims, if any, may be forfeited”  Further  the counsel for OP has  placed on record document G.R. 27  i.e. Instructions qua No Claim Bonus which depicts that where the insured is unable to produce such evidence of NCB entitlement from the previous insurer, the claimed 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 I of the Policy will stand forfeited.”

                        In view of the  observations  made above,  it is clear from the document Annexure R-3  that the complainant has suppressed  the material facts  while taking benefit of  ‘No Claim Bonus’  from the OP insurance Company at the time of issuance of Policy and submitted false declaration resulting into forfeiting  of all benefits under the policy and thus we hold that complainant is not entitled for any claim from OP  company.  Further, the facts of case law Tata AIG General Insurance Company Ltd. & Anr. (supra) put-forth by the Op-company is fully applicable to the  facts of the present case. As such, we have no option except to dismiss the present complaint.  Accordingly, the complaint is dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room.

 

Announced:27.04.2016                                                                  Sd/-

                                                                                              (A.K. SARDANA)

                                 PRESIDENT                

 

                                                                                                        Sd/-

                 (PUSHPENDER KUMAR)

                                                                                                            MEMBER