Order dictated by:
Sh.S.S. Panesar, President.
1. Mrs. Uma Rani has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that she has been taking the Insurance cover note for its car Premier Rio having registration No. PB-02-BP-4455 covering the risk for the period from 11.4.2013 to 10.4.2014 by paying the premium of Rs. 9887/- with sum assured Rs.4,50,000/-. The said vehicle unfortunately on 14.4.2013 got fire and burnt while the vehicle was stationery and parked in the house of the complainant. The DDR to the said effect has been lodged with the police post Faizpura, Amritsar. The opposite party was also informed and claimed was lodged with the opposite party. The opposite party vide its letter dated 17.2.2014 repudiated the genuine claim of the complainant on the ground that complainant has no insurable interest in the said vehicle. It is pertinent to mention over here that the complainant being the proprietor of the firm has got insured the said vehicle and due to some clerical error in mentioning the engine number in the cover note while transferring the policy from previous insurer has wrongly been mentioned which has been duly clarified to the opposite party. The act of the opposite party in repudiating the genuine claim of the complainant amounts to deficiency in service. The complainant has sought for the following reliefs vide instant complaint:-
(a) Opposite party be directed to pay the amount of Rs. 4,50,000/- alongwith interest @ 12% p.a. from 14.4.2013 till realization.
(b) Opposite party be also directed to pay compensation to the tune of Rs. 50000/- to the complainant alongwith adequate litigation expenses.
Hence, this complaint.
2. Upon notice, opposite party appeared and contested the complaint by filing written version taking certain preliminary objections therein inter alia that complainant is not covered under the definition of consumer as per Consumer Protection Act , as such the complaint is not maintainable ; that there are disputed and complicated questions of facts and law involved in the complaint and the same cannot be adjudged by this Forum and requires adjudication from the Civil Court, as such the complaint is not maintainable before this Forum ; that present complaint is false and malafide and deserves to the dismissed ; that complainant is stopped by its own act and conduct from filing the present complaint and the same deserves to be dismissed ; that complainant has not come to the Court with clean hands and is guilty of concealing the material and true facts from this Forum. It was denied that complainant has got any insurable claim as regards to car bearing registration No. PB-02-BP-4455. The facts remains that on investigation by M/s. S.A.Investigating and Consulting Agency, it was revealed that the car was registered in the name of M/s. Amar Nath Khanna Jewellers, a business concern with the registration Authority and not in the name of the complainant. The complainant by producing the Insurance policy of National Insurance Company in her name for the past period, requested for insurance cover note for the further period of another year in her name, the earlier policy was yet to expire, believing the representation to be genuine, the opposite party issued the cover note in the name of the complainant for the period from 11.4.2013 to 10.4.2014 with same Chassis number and engine number as was mentioned in the policy presented for renewal from the opposite party. The opposite party issued the cover note subject to verification from the previous insurer about the genuineness of the NCB claim as was claimed by the complainant. The opposite party upon investigation found that the NCB claim of the insurance even was not genuine as the earlier policy was not in respect of the policy in the name and in relation to the same vehicle as the vehicle mentioned therein was having different engine and chassis number that what were mentioned in the insurance documents presented for renewal of the policy. As such the claim of the complainant accordingly was repudiated vide letter dated 17.2.2014 ; that the complaint is bad for non joinder and mis joinder of necessary parties. The Central Government is necessary and proper party as the account in question pertains to the scheme of the Central Government and in the absence of such party the present complaint deserves to be dismissed on this score alone. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.
3. In his bid to prove the case Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-21 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.P.K.Mody,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Gurdip Singh, Divisional Manager Ex.OP1 alongwith documents Ex.OP2 to Ex.OP13 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by both the parties.
6. Ld.counsel for the complainant has vehemently contended that it is not disputed that car bearing registration No. PB-02-BP-4455 belonging to the complainant was under insurance cover of the opposite party vide Insurance policy, copy whereof is Ex.C-2 for the period w.e.f. 11.4.2013 to 10.4.2014. Copy of the registration certificate accounts for Ex.C-9. Unfortunately on 14.4.2013, during the insurance period, the car met with a fire incident in which it was burnt into ashes. Claim was lodged for a sum of Rs. 4,50,000/- . However, the same was repudiated by the opposite party vide letter dated 17.2.2014. Main ground for repudiation had been that the Chassis number as well as engine number disclosed by the complainant were different in Insurance cover as mentioned in the registration certificate. It is not out of place to state that the cover note reflects registration number of the vehicle to be PB-02-BP-4455 which tallies with the one mentioned in the registration certificate . Previous policy of National Insurance Company , copy whereof is Ex.C-17 on record did not contain registration number . Since the Insurance policy in dispute reflects registration number, it is , therefore, obvious that Insurance policy in dispute had been issued on presentation of earlier insurance certificate, it appears that wrong entry of chassis number and engine number might have been made by the opposite party inadvertently as a typographical mistake. But as the previous insurance policy did not contain registration number, it is quite clear that registration certificate of the vehicle was also inspected by the opposite party and if they have committed the typographical mistake in mentioning the engine number and chassis number , it is the opposite party , who has to suffer. The complainant cannot be made to suffer for the mistake of the opposite party.
7. It has further been contended that the second point taken by the opposite party for repudiation had been that the vehicle was in the name of proprietor concern while the policy was obtained in the name of the proprietor. But the said objection is not tenable because the registration certificate of the vehicle is in the name of the complainant while the Insurance cover was also in favour of the complainant. Even otherwise also proprietorship or partnership concerns are legal entities and they have to function through individuals only and therefore, the said objection is also not tenable.
8. It is further contended that the third point raised by the opposite party has been that vehicle was not in a good condition and therefore, the vehicle not being road worthy, should not have been driven. But this objection is also not entertainable because , the vehicle when caught fire, it was parked and as such stationary and the said fact stands duly established through evidence on record.
9. On the basis of aforesaid contentions, it has been canvassed before us that repudiation of the claim of the complainant has wrongly been made, as such, the complaint deserves to be allowed in the interest of justice.
10. But, however, from the appreciation of the facts and circumstances of the case , it becomes evident that the complainant at the first instance obtained car make Rio bearing Engine No. PLDTX 00287 Chassis No. 9000113 on 11.4.2011 . But a few days afterwards new model of RIO car came in the market, the complainant approached the car agency and got her car exchanged for RIO car belonging to Sukhdev Singh S/o S. Karam Singh, H.No. J13, Khalsa Colony, Opposite Chattwal Petrol Pump, G.T. Road, Amritsar through good offices of the agency. Ex.C-6 letter received from car agency bears witness to the said fact, which has been produced by the complainant herself on record. This shows that previous car owned by the complainant was insured vide Insurance certificate, copy whereof is Ex.C-17 and after exchanging present car, the complainant did not get the insurance certificate endorsed for the car in dispute. At the time of getting the insurance from opposite party, the engine number and chassis number appear to have been noted from document Ex.C-17. As a matter of fact that complainant in her eagerness to get NCB from opposite party, did not get a new insurance cover issued, rather the insurance cover in dispute was obtained in continuation of earlier policy. As such the complainant has failed to connect the car in dispute with the insurance certificate Ex.C-2 issued by the opposite party. The complainant is also guilty of suppression of material facts at the time of obtaining Insurance policy in dispute. Insurance agreements are uberrimae fidei & the party which approaches the Insurance company with malafide intention, is not entitled to get the insurance claim. Reliance in this connection can be had on Satwant Kaur Sandhu Vs. New India Assurance Company Limited 2009(8)SCC 316 , Hon’ble Supreme Court of India it has been held that when information on a specific aspect is asked for in the proposal form, the assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known whether the information sought for is material for the purpose of the policy is a matter not to be determined by the proposer. It has further been held that a mediclaim policy is a non life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information is material or not.
11. However, remaining objections regarding repudiating the claim are not found to be tenable , but since the complainant was not uberrimae fidei at the time of obtaining the policy and made deliberate misrepresentation of material facts at the appropriate juncture, therefore, the opposite party was justified in repudiating the claim. Instant complaint is nothing but an abuse of the process of law. Consequently, instant complaint fails and the same is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 24.11.2016.
