Order dictated by:

Sh.S.S. Panesar, President

1.       Smt.Darshan Kaur has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant is owner of vehicle bearing No.PB-02-BW-0270 (Ford Figo Car) which was insured with Opposite Party vide insurance cover note No.CHD-D121135, Policy No. 235301/31/2014/5596 valid from 16.2.2014 to 15.2.2015 and paid premium of Rs.8945/-. On 13.4.2014 Yadwinder Singh son of the complainant was going on his car in question and met with an accident and DDR No. 46 dated 17.4.2014 was registered at P.S.Ajnala, copy of DDR is enclosed. Thereafter, the complainant got his vehicle repaired from Bhagat Ford, Amritsar and lodged the claim with Opposite Party for a sum of Rs.2,10,421/- i.e. Rs.2,07,921/- spent on the repair of vehicle in question to Bhagat Ford and Rs.2500/- spent on recovery van from Ajnala to Amritsar, but Opposite Party did not pay any heed to the genuine request in regard to the claim of the complainant. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party may kindly be directed to pay the amount of Rs.2,10,421/- alongwith interest @ 13% per annum from the date of repair of vehicle in question.

b)      Compensation of Rs.25,000/- may kindly be granted in favour of the complainant and against Opposite Party on account of mental pain, agony and harassment suffered by the complainant.

c)       The costs of proceedings and any other  relief to which the complainant is found entitled under the law and equity may also be granted in favour of the complainant.    

Hence, this complaint.

2.       Upon notice, Opposite Party appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that  complaint filed by the complainant is not legally maintainable because the Opposite Party has already repudiated the claim on merits. In this regard, letter dated 8.3.2016 was written by Branch Manger of the Opposite Party stating  that as per the policy terms and conditions, good faith is the basis of contract of insurance and the complainant did not disclose  the actual  facts at the time of insurance, rather, the information given by the complainant was in a way of manipulated the previous policy. However, in ten said letter, an opportunity was given to the complainant to substantiate her claim in view of the grounds of repudiation mentioned in letter dated 8.3.2016 before  final decision is taken.  It was also made clear that any representation/ clarification must reach within one week from the date of this letter, otherwise the claim shall stands repudiated for the reasons  indicated above without further advice from the insurance company. The complainant did receive the said letter but did not submit any clarification or made any representation which clearly shows that the complainant has accepted the reasons of repudiation made by Opposite Party. The complainant has not intentionally given the reference of this letter in the complaint which clearly shows that the complainant has not approached this Forum with clean hands. As the earlier policy alleged to have been obtained by the complainant from Future Generali (India) Insurance Company Limited, stands proved as forged one by the said insurance company, therefore,  the said insurance company i.e. Future Generali (India) Insurance Company Limited was a necessary party to the present case, but the complainant has not intentionally impleaded the said insurance company as party to the present complaint for the best reason to her. The Opposite Party appointed independent investigator to investigate regarding genuineness of the earlier policy on the basis of which the complainant succeeded in getting renewal of the policy from the Opposite Party. Said investigator as well as Opposite Party made lengthy correspondence with the complainant in this regard calling upon her to submit clarification/ any representation regarding non disclosure of material facts and manipulating the period of previous policy but the complainant failed to submit any reply to the same which clearly shows that the complainant has admitted the said facts as correct one, hence legally the present complaint is not maintainable. As far as contract of insurance is concerned, it is based on the principle of utmost  good faith. However, if the party to the said contract of insurance shakes the said  good faith, then it is debarred from getting any relief under the policy in question  and all benefits stands forfeited under the policy in question.  In this regard, it is further submitted that had the complainant disclosed that the said insurance cover which had been produced by her alleged to have been issued by Future Generali (India) Insurance Company Limited, is not correct one, then the Opposite Party may not have renewed the said policy as there was long break up period or  if at all the said insurance is accepted, then the same may have been accepted with special conditions and pre-inspection of the vehicle. However, on account of non-disclosure of the material facts, the Opposite Party was debarred from taking any such steps and as such rights of the Opposite Party have been prejudiced on account of non-disclosure of material facts and manipulating the period of previous policy by the complainant. Therefore, the complainant has shaken the principle  of utmost good faith and has  lost all benefits under the policy in question issued by Opposite Party on the basis of principle of utmost good faith. Moreover, in this case, the survey report was obtained through independent surveyor who has assessed the loss to the tune of Rs.1,30,411/- subject to adjustment of salvage value of Rs.2200/-. However, said  report was submitted subject to terms and conditions of the policy and acceptance of liability by the underwriters. As the complainant has made fraudulent means and has violated the terms and conditions of the standard motor policy in question, therefore, she has forfeited all her rights and remedies under the said renewal policy.  Therefore, even otherwise the loss assessed by the independent surveyor is not payable. As far as the  authenticity of the loss assessed by the surveyor is concerned, it has been held by the Higher Courts that survey report is authenticated document and should be taken as substantial piece of evidence by the court because surveyor is the best person to assess the loss and the court cannot assume the role of the surveyor. Even otherwise, the date of alleged accident has been stated as 13.4.2014, but intimation for the first time has been given to op on 22.4.2014 after period of 9 days without any explanation. In this regard, it is submitted that as per policy terms and conditions immediate intimation in writing has to be given and if this condition is not fulfilled then the insured loses all benefits under the policy. On merits, the Opposite Party has taken almost same and similar pleas as taken by them in preliminary objections.                                           Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In her bid  to prove the case, complainant tendered into evidence  affidavit Ex.C1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C7  and closed her evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.R.K.Sharma Ex.OP1  alongwith copies of 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 evidence on record.

6.       On the basis of evidence on record, ld.counsel for Opposite Party has vehemently contended  that the claim of the complainant has already been repudiated by Opposite Party vide its repudiation letter dated 8.3.2016 giving detailed reasons of the same and one of the reasons has been stated as ‘Non disclosure of material facts’ i.e. giving intimation immediately to Opposite Party regarding the alleged occurrence. In this case, the intimation letter dated 22.4.2014 Ex.Op2 is available on the court file  giving reference   of accident   dated 13.4.2014 which means and imply that intimation regarding the accident has been given after the gap of 9 days without any explanation. This clearly shows that the complainant has intentionally concealed the material facts and has deprived the Opposite Party to make immediate enquiry regarding alleged damage to the insured vehicle. As far as giving of immediate intimation is concerned,  it has been clearly agreed in the contract of insurance as per condition No.1 that “notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of such claim. Besides that the insured shall also give immediate intimation to the police authorities so that the company can succeed in securing the conviction of the offender.”  As far as interpretation of terms and conditions of the policy are concerned, the same have been considered by different courts at different intervals and a reference  can conveniently be made to Mantoo Ram Bari Vs. New India Assurance Company Limited 2016)2) CLT page 310 (NC) wherein there was a delay of seven days in intimation given to the insurance company and it was held that the insurance company can not be saddled with liability to pay compensation to the petitioner who himself has not complied with terms and conditions of the policy. It has further been contended that although the intimation was given after 9 days from the date of occurrence without any explanation and basically the claim was not payable yet in order to quantity the liability of the company without prejudice to the fulfilment of terms and conditions by the insured, an  independent surveyor Mr.Barjinder Singh was deputed who assessed the loss to the tune of Rs.1,30,411/- subject to salvage value of Rs.2200/-. The surveyor report as well as his affidavit are Ex.OP3 and Ex.OP4 respectively on the court file. However, this amount was also not payable by the Opposite Party on account of violation of condition No.1 & 8 of the policy. So far as violation of terms and conditions of insurance policy is concerned, the insurance claim was liable to be rejected. Reference in this connection has been made to M/s.Suraj Mal Ram Niwas Oil Mills (P) Limited..Appellant Vs United India Insurance Company Limited and another –Respondents 2010(4) RCR (Civil) page 845, wherein it has been held that on the contract of insurance, rights and obligations are strictly governed by terms of the policy and no exception or relaxation can be given on the ground of equity. It has been further held in this judgement  that words used in the contract of insurance must be given  paramount importance and it is not open for the court to add, delete or substitute any words. In this judgement, it has been further held by Hon’ble Supreme Court of India that where there is breach of condition of the insurance of contract by the insured, the insurance company is not liable to pay compensation in case of loss.  Not only that, the assessment of loss made by the surveyor is binding inter se parties as surveyor is independent person and has not axe to grind against any of the parties . Reference in this connection has been made to United India Insurance Company Vs. Roshan Lal Oil Limited 2001(2) CPC 340 wherein it has been held that surveyor report is an important document and its non consideration is miscarriage of justice. Further reliance has been placed on Paam Eatables Vs. United India Insurance Company 2994(3) CLT page 163, wherein it has been held  that surveyor’s report being an important document can not be rejected without any reason.

7.       It has further been contended by ld.counsel for Opposite Party that in this case, the insurance policy in dispute has been procured fraudulently by the complainant from Opposite Party by suppressing the facts that vehicle  in dispute was already insured with Future Generali (India) Insurance Company Limited for the period 11.6.2012 to 10.6.2013 pertaining to cover note No.D-3901404. However, subsequently, the complainant manipulated this policy w.e.f. 16.2.2013 to 15.2.2014 but she forget that the same cover note No.D-3901404 is also available in the policy in dispute. According to law, one cover note pertaining to one policy cannot be depicted in the subsequent policy and from this it is apparent that the policy allegedly for the period 16.2.2013 to 15.2.2014 which was got issued from Oriental Insurance Company Limited was a result of fraud and manipulation on the part of insured. This fact also stands proved when Mr.Simarjit Singh Bawa visited the office of Future Generali (India) Insurance Company Limited and gave certificate that cover note No.D-3901404 is only pertaining to their policy w.e.f. 11.6.2012 to 10.6.2013. In the light of said certificate as well as technical point mentioned hereinabove that one cover note can only pertain to one policy, it is beyond doubt that in fact after 10.6.2013 the complainant was not having any policy from Future Generali (India) Insurance Company Limited, but she manipulated earlier policy with further coverage of period from 10.6.2013 to 15.2.2014 just to get renewal in  routine from Opposite Party which is based on concealment, manipulation and fraud played by the complainant with Opposite Party as well as Future Generali (India) Insurance Company Limited. It is the basic law that any person who plays  fraudulent means  for getting any benefit from the insurance company is not entitled to get any relief. On the basis of aforesaid contentions, ld.counsel for Opposite Party has vehemently canvassed before us that the claim of the complainant has rightly been repudiated by Opposite Party-Insurance Company and the complaint is without any merit and the same is liable to be dismissed and the same may be dismissed accordingly.

8.       However, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has been able to prove her case in accordance with law. The Opposite Party has been blowing hot and cold in same breath. At the very outset, Opposite Party is claiming  that the policy was issued on the basis of previous policy, but however, the policy document, nowhere depict the said fact. As a matter of fact instant policy was a new policy vide which the complainant was charged maximum premium to the tune of Rs.6701/- as new policy “Motor OD Basic-New”. Further, had it been renewal of earlier policy, there must have been a mention of NCB, which is not the case  in the previous controversy. This establishes that it was a new policy, which was issued by the Opposite Party after due verification. Even otherwise the Opposite Party  failed to prove the stand taken by them in the written version. No report of the investigator has been placed on record nor any record of Future Generali (India) Insurance Company Limited was summoned  or placed on record to substantiate the stand of Opposite Party. The Opposite Party in its  wisdom has placed on record the report of surveyor dated 28.7.2014 of Sh.Barjinder Singh, copy whereof is Ex.OP4, but he did not raise any objection in that regard. The surveyor assessed the loss of Rs.1,30,411/-  after making arbitrary deductions without assigning any reasons whereas he has admitted in his report that he inspected the vehicle and found that new parts were being replaced and repair was being done.  It is worthwhile to mention over here that he verified the bill of the authorised service station of the Ford Vehicles M/s.Bhagat Fords for Rs.2,07,921/- Ex.C5 and as per the settled law by Hon’ble Apex Court the claim based on original bills and vouchers was  to be paid and surveyor’s report  in such an eventuality is required to be ignored. Reliance in this connection can be placed on New India Assurance Company Limited Vs. Pradeep Kumar, (IV) 2009 CPJ page 46 (SC). In view of the law laid down by Hon’ble Supreme Court of India, the claim of Rs.2,10,421/- is payable to the complainant besides the compensation and litigation expenses. 

9.       The Opposite Party has further taken the objection that delay in intimating the Opposite Party regarding the loss in accident was fatal. However, the fact that the intimation regarding the accident has been given after 9 days of the occurrence is no ground to decline the genuine claim. Reliance in this connection can be had on National Insurance Company Limited versus Kamal Singhal IV (2010) CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions in the matter of (1) National Insurance Company Ltd. v. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. v. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court in the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), has held that:

“the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer”.

10.     From the aforesaid discussion, it  transpires that the claim of the complainant has wrongly been declined by the Opposite Party without any reasonable cause. Moreover, the assessment of loss made by the surveyor has also not been properly done because he has wrongly ignored the bill Ex.C5 for a sum of Rs.2,10,421/- issued by Bhagat Fords, the authorised service station of Opposite Party, for repairs & parts without any reasonable excuse. In such a situation, the report of the surveyor assessing loss to the tune of Rs.1,30,411/- can not be accepted, rather the complainant is entitled to recover Rs.2,10,421/- as insurance claim on the basis of actual expenditure incurred by her on the repair of the vehicle in dispute. Consequently, the instant complaint succeeds and Opposite Party is directed to pay Rs.2,10,421/- alongwith interest @ 9% per annum from the date of order until full and final recovery. The costs of the complaint are assessed at Rs.2000/-. The compliance of this order be made within 30 days  from the date of receiving the copy of order, the complainant shall be at liberty to get the order executed through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 13.10.2016.