Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 246/06.09.2019
Shri Ravinder Kumar s/o Shri Pritam Singh
R/o A-11C, West Jyoti Nagar,
Gali No.3, Shahdara, Delhi …Complainant
Versus
OP1- The Oriental Insurance Company Ltd.
Office at: 16/20, WEA, 1st Floor,
Near Shastri Park, Padam Singh Road,
Karol Bagh, New Delhi-110005
Service to be effected through its Director
OP2-Policy Bazar 1,
Plot No. 119, Sector-44, Gurgaon, Haryana ...Opposite Parties
Date of filing 06.09.2019
Date of Order: 08.08.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties and their disputes) – Complainant Ravinder Kumar is registered owner of vehicle bearing registration no. DL-07-CM-1777, make Mahindra & Mahindra Scorpio SLE BS4 (G) (hereinafter referred as vehicle). He got his vehicle insured from OP1/Oriental Insurance Company Ltd., which was got inspected by OP1 through OP2/ Policy Bazaar-1 and then vehicle was insured. OP2 assessed and advised the value of vehicle, which was declared as IDV of Rs. 5,75,338/- and insurance premium was paid accordingly. But, the vehicle was stolen, however, the OP1 failed to reimburse the total theft loss amount despite lodging the claim. There is deficiency of services on the part of OPs.
1.2 The OP1 opposed the claim that there is no deficiency of services but it was complainant, who concealed about his previous claims from the other Insurer. The complainant was allowed 45% NCB, whereas actually he was entitled for 20% NCB, consequently, additional premium was recovered from him and IDV was treated as Rs. 5,00,000/-. The loss claim was determined as Rs. 3,73,00/- which he had refused and then he filed the complaint.
1.3. The OP2 has also reiterated the plea as taken by OP1 that there was concealment of fact by the complainant about receipt of damage claim from the previous Insurer and he was not eligible for 45% NCB but 20% NCB. In addition, the OP2 is just intermediary between the policy holder and the insurance company. He has no liability towards the complainant. The complaint is false.
2.1. (Case of complainant) – Succinctly, the complainant is owner of the vehicle. He got insured his vehicle insured from OP1 vide policy no. 211200/31/2019/ 25058 w.e.f. 03.05.2018 to 02.05.2019. The vehicle was inspected by OP1’s agent OP2, who advised its gross value, which was declared as IDV of Rs. 5,50,338/- . The vehicle was insured and premium of Rs. 17,722/- was also paid to OP1, who accepted the same.
2.2. On 16.11.2018, the vehicle was stolen, an e-FIR no. 040947 was registered at e-PS Jyoti Nagar, but the vehicle remained untraced by the police, therefore, police had filed untraced report in the court of Ld. ACMM, Shahadra, Delhi and it was accepted on 21.12.2018.
2.3. The complainant applied for theft loss claim of Rs.5,50,338/- with OP1, however, instead of releasing the claim, OP1’s officer had sent reply that complainant is eligible for 20% NCB instead of 45% NCB, on the basis of confirmation by previous Insurer. Since the vehicle having IDV Rs. 5,50,338/- at the time of loss, the claim amount is to be reduced by percentage of NCB besides to recover balance payment through endorsement and the net liability for claim amount is Rs.3,73,000/- after deduction of excess amount. Whereas, it is false and bogus reply by OP1 in order to escape from its liability. The complainant is entitled for claim for insured value of Rs. 5,50,338/- but it has been denied, therefore, it amounts to deficiency in services. The complainant suffered mental pain and agony on the part of OP, the complainant also deserves compensation. That is why, the complaint for a sum of Rs. 5,50,338/- with interest @ 18%pa, compensation of Rs. 50,000/-, litigation expenses of Rs. 25,000/- and other relief.
2.4. The complaint is accompanied with copy of insurance certificate of 03.05.2017, copy of insurance certificate by OP1, email dated 07.12.2018, copy of DD no.9 dated 16.11.2018 PS Jyoti Nagar of theft report and copy of order dated 21.01.2018 of acceptance of untraced report of the vehicle.
3.1 (Case of OP1)- The OP1 filed detailed reply dated 31.10.2019 and opposed the complaint. The complainant took the insurance policy from OP1 and availed NCB @ 45% , however, when OP1 confirmed from the previous insurer (Tata AIG), it revealed that complainant is entitled to 20% NCB instead of 45%. TATA AIG had insured the vehicle from 03.05.2017 to 02.05.2018 and confirmed eligibility of 20% NCB of vehicle of complainant vide email dated 10.04.2019. As per record discovered, the complainant had taken claim from Future Genereli General Insurance Company for Rs.18,990/- when he had also suffered car damaged on 13.06.2016. The complainant has concealed these facts. Moreover, the IDV value of vehicle was construed Rs.5,00,000/- and not Rs. 5,50,338/-, therefore, OP1 recovered excess NOC allowed amount of Rs. 3,771/- from the complainant.
3.2. The OP1 also informed the complainant that net liability of OP1 is for Rs. 3,73,000/- and consent of complainant was asked for the said amount, however, instead of giving of consent, the complaint was filed. The OP1 is not liable to pay any amount nor complainant is entitled for any amount as there is no cause of action and deficiency of service on the part of OP1. The complainant wrongly availed excess NCB from the OP1 by concealing fact of taking own damage claim from previous insurer. The complainant has not suffered and mental pain or agony. The complaint is liable to be dismissed.
3.3. The reply is accompanied with insurance cover note and copy of email.
3.4. (Case of OP2)- The OP2 filed detailed reply dated 04.11.2019, duly supported by affidavit dated 21.11.2019 and opposed the complaint. The reply of OP2 is after the reply of OP1. The OP2 opposed the complaint that neither complainant is a consumer nor OP2 is liable on any count since it is a facilitator between the complainant/policy-holder and the OP1/Insurer. The written statement also reflects, as stated by OP1, facts and features in respect of eligibility of 20% NCB instead of 45% NCB, which was allowed by OP1. The complainant obtained the policy by misrepresentation and concealment of facts. The OP2 being intermediary between the complainant and the insurance company; there is no previty of contract between the complainant and OP2. The OP2 is not liable on any count. The OP2 had not done inspection of the vehicle nor advised gross value for IDV. The complaint is liable to be dismissed qua OP2 and name of OP2 is required to be removed from the complaint.
The reply is accompanied with web-generated material on concept of depreciation in the value of vehicle for the purposes of IDV.
4.1 (Replication to the reply of OP1)- The complainant filed detailed replication to the written statement, he confirms the complaint as correct. The complainant reiterates that the vehicle was inspected by the OP2 and valued of vehicle advised was mentioned as IDV, apart from NCB of 45% was assured by OPs through OP2, OP1 has also collected an additional amount of Rs. 3,771/- from the complainant with an assurances being requirement for 45% NCB to be allowed. Moreover, at the time of obtaining insurance policy, on the query of OP2 the complainant had clearly stated that he had not received any claim for the last 12 months for the tenure of previous policy, which was issued by Tata AIG in his favour. It was OP2 who had itself assessed value for IDV of Rs. 5,50,338/- and also offered NCB 45%. At the time of making NCB from OP1, OP1 had asked to deposit Rs. 3,771/- since OP1 was giving 45% NCB to the complainant, the complainant deposited the amount of Rs. 3,771/- to OP1.
The OP1 has not provided or explained on what scale amount of Rs. 3,73,000/- was determined. The complaint is correct.
4.2 (Replication to the reply of OP2)- The complainant filed detailed replication to the written statement, he confirms the complaint as correct. The vehicle was inspected by the OP2. The OP2 had also stated that complainant was getting 35% NCB but OP2 will secure 45% NCB after inquiry from complainant about previous 12 months claim. Then, complainant had purchased the policy. The complaint is correct.
5.1. (Evidence)- Complainant led evidence by filing his detailed affidavit, which is on the line of complaint duly supported by documents filed with the complaint.
5.2. OP1 led its evidence by filing affidavit dated 06.01.2020 of Ms. Mandakini Balodhi, Senior Divisional Manager and some additional documents have been filed with the affidavit, but there was no permission sought from the Commission for filing these additional documents. The documents ought to have been filed with the reply and permission ought to have been taken for filing the additional document. This norm has not been followed by the OP1.
5.3. OP2 led evidence by filing of affidavit dated 15.01.2020 of Ms. Shivli Katyyan, an authorized representative of OP2, it is on the lines of reply. The affidavit is supported with literature filed with the reply, to fortify cocncept of depreciation for adjusting IDV.
6.1 (Final hearing)- The complainant, the OP1 and the OP2 filed their respective written arguments.
6.2. The parties were given opportunities to make oral submissions and while availing this occasion, Sh. Faimuddin Advocate for complainant and Sh. Faizal Zafar, Advocate for OP2 made oral submissions. There were no oral submissions on behalf of OP1.
6.3. It does not require to re-produce the oral contention of the parties, as the same will be referred appropriately as well as relevant to the present dispute, since OP2 has also travelled beyond relevancy besides the material, which were not the pleadings or evidence.
7.1 (Findings)- The contentions of all the parties are analysed, assessed and considered. Keeping in view the material on record and case law presented besides the statutory provisions of law & Regulations. All the points raised are being taken one by one.
7.2. It is admitted position that complainant is Insured, OP1 Insurer and OP2 was in between the complainant and OP1 in respect of insurance policy issued to the complainant.
The OP2 contends that complainant is not a consumer since OP2 is an intermediary between the complainant and the OP1, his role is very limited to the extent of a facilitator. There is no previty of contract. It is opposed by the complainant that OP2 is an agent of OP1, the vehicle was inspected by it before issue of policy, all relevant information and queries raised by OP2 were gathered by it on behalf of OP1 and the complainant had furnished such information to OP2 for the purposes of insurance policy to be issued by OP1.
By analyzing the circumstances, the OP1 has not raised any objections with regard to status of the complainant being consumer but OP2 is raising it. In the series of events, it is apparent that OP2, even if it is a facilitator, it was rendering services to potential user of services of insurance policy to be issued by OP1. There is element of relationship of a ‘service provider’ but to a limited extent as ultimately policy was to be issued by OP1 on the basis of information and data collected by OP2 for OP1. Therefore, complainant is a consumer. The complaint is competent.
7.3. The other core issues in respect of IDV, NCB, quantum of claim and allied issues are being taken together, since they are intermingled with each other.
The complainant, the OP1 and the OP2 each of them have their own stand, but they are different stands. The complainant got the vehicle insured by declaring IDV of Rs. 5,50,338/-, which was the gross value assessed by OP2 and the complainant was permitted NCB of 45%, however, the OP2 denies valuation of vehicle for the purposes of IDV. The OP1 contends that on the basis of information and data obtained from the previous insurer in respect of the vehicle, the complainant was eligible for 20% NCB, consequently, the excess/ineligible NCB amount was recovered vis a vis IDV was treated of Rs. 5,00,000/- instead of Rs. 5,50,338/-. Accordingly, the claim allowed was up-to Rs.3,73,000/-, which was offered to the complainant to consent for its release and do needful, however, the complainant filed the present complaint. This rival stand of each party is being assessed from the evidence on record and following conclusions are drawn:-
(i) Since the OP1 formed an opinion that an amount of Rs. 3,73,000/- is payable which was not agreed by the complainant, therefore, it makes out a cause of action for the complainant to file the present complaint. Thus, there is no weight in the stand of OPs that complaint is without cause of action.
(ii) The case of OP1 is also that complainant concealed previous damages suffered by the vehicle and the complainant was compensated by previous Insurer, which is also endorsed by OP2 and after confirming from the previous Insurer the NCB was reduced from 45% to eligible NCB of 20%; additional premium amount was also collected. But complainant has reservation that he had not concealed any fact and he was enquired about previous claim within 12 months and he had responded accordingly to OP2. The additional amount was asked from him to make him eligible for 45% NCB, which he had paid.
As per record, the tenure of current policy is from 03.05.2018 to 02.05.2019, the complainant was compensated for damaged happened on 13.06.2016 by the previous insurer in respect subject vehicle. This confirms that the complainant was asked information of 12 months back and the date 13.06.2016 is much prior to 12 months from the date of policy with effect from 03.05.2018. Otherwise, on receipt of addition premium the ineligible excess NCB ceases to exist.
(iii) The OP2 has reservation that gross value of the vehicle was not assessed by it to be treated for IDV but complainant has juxtaposition plea. The OP2 has relied upon the literature of depreciation for IDV purposes, which has also been appended with the affidavit of evidence, it infers that being a facilitator for insurance business on the portal of policy bazaar, OP2 carries the calculations/computation for arriving at the value of the vehicles. These circumstances are suggesting that OP2 has assessed value of the vehicle, which complainant had declared IDV of Rs. 5,50,338/-. Thus, this contention of OP2 stands disposed off.
(iv) The OP1 wrote email dated 07.12.2018 to the complainant, it reads as “ Sir, We refer to your claim for theft of vehicle under the above Policy. In this connection, we are to inform you that you are entitle for 20%NCD instead of 45% as confirmed by previous insurer and subject vehicle IDV found Rs.5,00,000/- at the time of loss. Therefore, the claim amount will be reduced by the ineligible % of NCB in addition to recovery of balance premium through endorsement. Thus, the net liability for the claim amounts to Rs.3,73,000/- (after deduction of excess amount). So you are required to give consent for the said amount for further proceeding”.
To say, the OP1 has treated the IDV Rs. 5,00,000/- and then claim amount of Rs. 3,73,000/- was advised, there is no precise calculation for arriving at this figure nor OP1 has divulge any information for such assessment. However, in case the calculation is carried that IDV is Rs. 5,00,000/-, the excess/ineligible NCB was 25% and by reducing 25% corresponding amount of Rs.1,25,000/-, the amount comes to Rs. 3,75,000/- but the OP offered the amount Rs. 3,73,000/-. No other calculations are informed of by OPs.
Whereas the sum insured cannot be reduced by applying the percentage of NCB, since NCB is a bonus in lieu of want of making claim for damages. The NCB reduces the annual premium amount payable. NCB is not a depreciation to the value of vehicle. The OP1 has also not given detail as to how IDV was treated as Rs. 5,00,000/- vis-à-vis it has not been elucidated either in the reply nor in the evidence. Therefore, it is held that IDV of Rs.5,50,338/- as assessed by OP2 and consequently it was declared by complainant. IDV is declared by Insurer and not by Insured. The OP1 had also no objection on IDV prior to lodging the theft loss claim.
(v) Both the OP1 and OP2 are asserting that there is concealment of facts by the complainant, whereas, the proposal form is a relevant document of contemporary period, which is filled in before issuing the policy but OPs failed to furnish and prove the proposal form to cull out necessary information that there was concealment of fact. In Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".
(vi) The OP1 had informed the complainant by email dated 07.12.2018 [which has already been reproduced in sub-paragraph (iv) above] by suggesting that ineligible percentage of NCB was considered for arriving at claim amount of Rs. 3,73,000/-, however, the OP2 is projecting a different formula of depreciation in its reply as well as in the evidence, which was never the case of OP1.
Moreover, OP1 is maintaining the similar plea in its reply to the complaint but OP2 is projecting the same plea of depreciation formula in its evidence. It is not only contradictory stand of OP2 with the plea of OP1 but also OP2 is exceeding its role since it is just a intermediary of a facilitator. The OP2 is taking stand to make convenient to it as at one place that it is claiming to be just a intermediary but at other place projecting as if an Insurer.
(vii) On plain reading of pleading and evidence led by OP2, it reflects that reply and evidence was filed by OP2 are subsequent to the dates of reply and evidence of OP1. The reply and evidence of OP1 is based on the data and information collected by OP1 in its official functions but OP2 is reiterating the same information in its reply and evidence, despite it was not in its personal knowledge of OP2 nor it was shared to it by OP1. To say, the OP2 is asserting those facts and material which was never in its personal and official knowledge vis-à-vis it was not delivered by the OP1 nor by the complainant. The OP2 is projecting beyond its role of intermediary.
Under the circumstances, OP2 is a proper party to the complaint. Its name cannot be deleted from the array of parties. Although, the rights and obligations under the insurance contract is between the complainant and OP1.
7.4. The aforementioned discussions and conclusions clearly manifest that complainant had insured his vehicle for IDV for Rs.5,50,338/- against payment of premium, however, the vehicle was stolen. The State machinery of police came into action after form FIR but the vehicle could not recovered by the police. There was dispute of extend of eligibility of NCB, however, it stand resolved by making additional payment. Since it was total theft loss, the OP1 had not disputed this theft loss but OP1 limited it to Rs.3,73,000/- on the basis of excess ineligibility of NCB and OP2 opined otherwise, which was not the case of OP1. In addition, the OPs cannot take defence or go beyond it, what they had not expressed in their offer. Therefore, it is held that circumstances proved of total theft loss entitles the complainant for insured amount of Rs.5,50,338/- , so it is allowed in favour of complainant and against OP1.
7.5 The complainant also claim interest of 18% pa, however, there is no agreed date of interest, therefore, interest @ 6% pa from the date of complaint till realization of amount in favour of complainant and against OP1 will meet both ends.
7.6. The complainant has claimed compensation of Rs.50,000/-. The compensation has been claimed in lieu various difficulties, inconvenience and hardship, while approaching the OP1 to reimburse his valid claim, but complainant was offered lump-sum amount of compensation, which was not accepted by the complainant. By taking into account the situation that OP1 had to explore many existing circumstances as well as complainant has its own constraint because of communication with OP2, therefore, the complainant is held entitle for compensation of Rs. 10,000/- in his favour and against the OP1. Moreover, cost of Rs. 10,000/- is also determined and allowed in his favour and against OP1.
7.7. Accordingly, the complaint is allowed in favour of complainant and against the OP1 to reimburse/pay total theft loss amount of Rs.5,50,338/- along-with simple interest at the rate of 6%pa from the date of complaint till realization of amount besides compensation/damages of Rs.10,000/-and costs of Rs.10,000/-
OP1 is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the interest will be at the rate of 8% pa on amount of Rs.5,50,338/-.
7.8 Since, OP2 had played role between the complainant and OP1 for insurance policy, however, the insurance contract is between the complainant/insured and OP1/Insurer, therefore, no order against OP2, the complaint against OP2 is dismissed.
8. Announced on this 8th August 2023 [श्र!वण 17, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [InderJeet Singh]
Member Member (Female) President
