DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.358/2013
Smt. Suman Kushwah
W/o Sh. Kamlesh Kushwah
Permanent R/o Village Biyar,
Post Dhanuan, Distt. Etawah, U.P.
At present:
R/o D-1/21, Shiv Shakti Apartment,
Sector-71, Noida U.P. ….Complainant
Versus
Oriental Insurance Company
Through its Regional Manager/Divisional Manager/
Concerned Officer
L-5, Lajpat Nagar-II,
New Delhi-110024 ….Opposite Party
Date of Institution : 13.06.2013 Date of Order : 29.04.2021
Coram:
Ms. Rekha Rani, President
Ms. Kiran Kaushal, Member
ORDER
Ms. Kiran Kaushal, Member
- Brief facts of the case as pleaded are that the Complainant owned an Indica Car which was duly insured with Oriental Insurance Company (in short OP). The premium of Rs.10,595/- was paid by the Complainant towards insurance which was valid w.e.f. 30.06.2010 to 29.06.2011. It is stated that the said vehicle was duly registered with Assistant Regional Transport Office, Etawah on 15.07.2010 in the category of Motor Cab/ Taxi. The Complainant also got an ‘All India Tourist Permit’ of the said vehicle from Transport Department, U.P. which was valid upto 29.07.2011. It is submitted that the Complainant was using the said vehicle for her livelihood purposes.
1.1. It is next stated that the vehicle on the night of 12.01.2011 was being driven by the brother-in-law of the Complainant and at Lajpat Nagar due to the left tyre getting punctured the vehicle lost its balance. It struck the road divider and the vehicle was completely damaged. The incident was reported to the police station Lajpat Nagar on 13.01.2011, thereafter the Insurance Claim was filed with OP. However the Complainant’s claim was repudiated by OP on 26.12.2011 on the ground that
“the vehicle in question was insured as private vehicle for private use, but you got the same registered for Taxi purpose and willingly suppressed this material fact from the company”.
In this regard the Complainant submits that OP did not supply the copy of the policy, only cover note was issued to the Complainant and as such Complainant was having no knowledge about the terms and conditions of the policy in question.
1.2 It is further submitted that the damaged vehicle is still lying in the possession of the Complainant which is being parked in the premises of Shri Shiv Nandan at village Tigri, District Ghaziabad and the Complainant is making payment of Rs.2,000/- per month as parking charges. Besides the Complainant is making the installment of Rs.8544/- regularly to the Financer M/s Tata Motors Finance Ltd., Mathura, U.P.
1.3 Alleging illegal and arbitrary repudiation of claim the Complainant approached this Forum with prayer to direct OP to refund Rs.3,40,000/- to the Complainant being the cost of the vehicle and Rs.1 lakh to the Complainant towards mental agony and litigation cost.
- OP on receiving the Notice rather than filing the Written Statement filed an application for dismissal of the complaint. Thereafter OP was proceeded exparte vide order dated 16.09.2014.
- Exparte evidence and written submissions are filed on behalf of the complainant. NOC by Tata Motors Finance Ltd. as regards the hypothecation is filed by the Complainant.
- Material placed on record is perused carefully. Submissions made by the Complainant are heard.
- At the initial stage, OP filed an application for dismissal of the complaint on account of territorial jurisdiction stating that the OP is the Head Office which has an independent identity and has nothing to do with the contract of insurance issued by Divisional Office at Agra in favour of the Complainant. Therefore the complaint be dismissed on the ground of the territorial jurisdiction. It is noticed that the incident wherein the vehicle was damaged took place at Lajpat Nagar which is in the jurisdiction of this Commission therefore OP’s application is rejected.
- Now on the merits of the case. Documents appended at page-17 & 22 show that Complainant’s vehicle was registered as Taxi and the Complainant also had an All India Tourist Permit for the vehicle in question. Complainant has pleaded that she was using the vehicle for her livelihood however the fact that it was registered as a ‘Taxi’ with an ‘All India Tourist Permit’ the inference drawn is that the vehicle was used as a ‘Taxi’. The insurance policy appended at page 20 of the complaint further shows that the Insurance Policy of the vehicle in question was taken for “Private Use Vehicle”. From the documents available on record it is very clear that the Complainant took the Insurance Policy of a private vehicle whereas the vehicle was registered as a ‘Taxi’ which is in violation of the terms & condition of the Insurance Policy. Complainant’s argument that he was just given the cover note and was not provided with the terms and conditions of the policy does not cut ice with this Commission. Contract of insurance is based on good faith and it is the duty of the insured to disclose relevant and true facts to the insurer.
- In Oriental Insurance Company Ltd. Vs. Mahindra Construction decided by two judge bench of Hon’ble Supreme Court (2019) 18 SCC 209 it is held that insurance is governed by the principles of utmost good faith, which imposes a duty of disclosure on the insured with regard to material fact.
- In MacGillivray on Insurance Law the rule concerning duty or disclosure is stated in the following terms:
“[Subject to certain qualifications considered below], the assured must disclose to the insurer all facts material to an insurer’s appraisal of the risk which are known or deemed to be known by the assured but neither known or deemed to be known by the insurer. Breach of this duty by the assured entitles the insurer to avoid the contract of insurance so long as he can show that the non-disclosure induced the making of the contract on the relevant terms….”
The suppression of the very fact that the Complainant had got the said vehicle registered as a Commercial vehicle or Taxi goes to the very root of the Contract of Insurance which would validate the grounds on which the claim was repudiated.
- In view of the discussion above, this Commission is of the opinion that the insurance claim was rightly repudiated. The complaint is accordingly dismissed.
- Let a copy of this order be sent to the parties as per rules. Thereafter file be consigned to record room.
Announced on 29.04.2021.
