Jammu and Kashmir

Jammu

CC/119/2017

KUNDAN SINGH - Complainant(s)

Versus

oriental insurance - Opp.Party(s)

Rakesh Abrol

20 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                489/DFJ           

 Date of  Institution       24-03-2017

 Date of Decision            09-10-2018

 

Kundan Singh,

S/O Sh.Baldev Singh,

Salmerhi,Udhampur.

                                                                                                                                     Complainant

         V/S

1.The Oriental Insurance Company Limited,

   Through its Branch Manager, Directs Agents Office,

Above Punjab National Bank Canal Road, Jammu.

2.The Oriental Insurance Company Limited,

    Through its Divisional Manager, Town Hall,

    Jammu.

                                                                                                                                                Opposite parties

CORAM

                 Khalil Choudhary   (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                     Member

                  Mr.Ghulam Sarwar Chauhan                               Member                                         

       

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Rakesh Abrol,Advocate for complainant, present.

Mr.Suneel Malhotra,Advocate for OPs,present.  

 

                                                              ORDER

                      Facts relevant for the disposal of complaint on hand are that complainant being registered owner of vehicle Toyota Innova bearing registration No.JK14C- 4898,got same insured initially in the year 2014-2015 with IFFCO TOKYO Ltd.against a premium of Rs.36,363/ under Policy No.TIT/91213958(copy of policy Annexure-A)That the complainant further got his vehicle insured in the year 2015 with the OPs i.e. Oriental Insurance Co.Ltd.w.e.f.14-01-2015 to 13-01-2016 against a premium of Rs.23,948/-with 25% NCB under Policy No.262101/31/2015/4541 (Annexure-B)That the said vehicle was again got insured w.e.f.14-01-2016 to 13-01-2017 that too with the OP and the complainant  was also given 35% No Claim Bonus NCB in the said policy vide Policy  No.262101/31/2016/3886 dated 11-01-2016 (Annexure-C).That in the month of March,2016 said vehicle met with an accident, as such, surveyor,namely,Vishal Goel,came on spot and accordingly, charged fee from the complainant to the tune of Rs.6549/-(Annexure-D)Complainant further submitted that the vehicle was got inspected and after that an estimate was made by G.S.Motors,Kot Kapura Bye Pass,Near Punjab ITI,Moga to the tune of Rs.1,15,415/(copy of estimate dated 16-03-2016 is annexed as Annexure-E) and after the vehicle was got repaired, complainant approached OPs to disburse the amount paid by him, in lieu of the fact that the vehicle got insured with the OP,however,the OPs assured that the amount will be disbursed, as soon as, the same is approved in his favour.According to complainant, the vehicle further got insured with the OP w.e.f.14-10-2017 to 13-01-2018(Annexure-F)Complainant further submitted that he was expecting the disbursement of insurance amount in his favour,however,he was shocked to receive a communication dated 28-12-2016 which was received by him in the month of January,2017,wherein the OPs have refused to acknowledge the accident claim of the vehicle. Complainant further submitted that he had apprised the company about the said claim in the year 2015 itself and accordingly was given the NOC by the Iffco Tokyo and accordingly the OP had get the vehicle insured w.e.f.2015 and subsequently the OPs are insuring the vehicle of complainant till date. Allegation of complainant is that he had not got any claim in the year 2015-16 and thereafter in the subsequent policy, he had got 35% NCB as reflected in the policy No. 262101/31/2016/3886 dated 11-01-2016,however,the OP called him to deposit an additional amount of Rs.1293/-in order to secure claims in future without disclosing the fact that his claim stands rejected and sent through registered post and this act of OPs constitutes deficiency in service. Hence the present complaint. In the final analysis, complainant prays for reimbursement of Rs.1,15,415/as loss of vehicle and in addition also prays for compensation of Rs.2.00 lacs including litigation charges.

            On the other hand,OPs filed written version and while denying the allegations of complainant in toto,went on to submit that OPs after due application of mind and considering the material on record repudiated the claim of complainant by virtue of detailed communication/letter dated 28-12-2016 when the complainant despite affording an opportunity vide letter dated 10-11-2016  substantiate his claim in view of having preferred a claim in the previous policy, as such was not entitled to any No Claim Bonus, but have claimed the same believing on the representation of the complainant. The complainant did not reply the letter dated 10-11-2016,hence the claim of complainant stand repudiated vide letter dated, 28-12-2016 and the complainant was accordingly informed. It is submitted that complainant had got his vehicle Innova bearing registration No.JK-14C 4898 previously insured from IFFCO TOKYO North Block,Bahu Plaza,Jammu and under Policy No.TIT/91213956 for the period 14-01-2014 to 13-01-2015. Version of OP is that complainant approached OP Office at Jammu and sought insurance of the vehicle in question bearing  No.JK-14-C/4898 under Policy No. 262101/31/2015/4541 for the period 14-01-2015 to 13-01-2016.The complainant was given 25% as no claim on his undertaking that the complainant has not lodged any claim and receipts the same under previous policy from IFFCO TOKYO.The complainant filled the  proposal form on the representation that he had not claimed any indemnity from the previous insurer,therefore,complainant availed No Claim Bonus(NCB)-GR 27 to the extent of Rs.3445/-.According to OPs, the proposal form filled by the complainant with the declaration, wherein he had declared that the rate of NCB claimed by him is correct and no claim has arisen in the expiring policy period and further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section 1 of the policy will stand forfeited. The complainant was accordingly issued the insurance policy for the period 14-01-2015 to midnight 13-01-2016 and thereafter from 14-01-2016 to 13-01-2017 with 35% as NCB.The NCB was availed and subtracted from total own damage premium otherwise to be paid by the complainant. The complainant thus again availed Rs.2678.27 as NCB.That the complainant lodged a claim with the OP alleging therein that the vehicle suffered an accident     when the vehicle of complainant was parked on road side near electric pole at B.C.Road  Jammu,a TATA 407  driven in a rash and negligent manner had hit at the rare side of the insured vehicle on,10-03-2016 at about 8.30 AM.The OP  deputed Vishal Goyal Surveyor and Loss Assessor to report and assess the loss, who after associating the complainant with the process of loss  assessment issued his report dated 22-06-2016 received in the office. On receiving assessment report, the officer scrutinized  it  and it was found after deducting the excess clause and the salvage value, the loss assessed is Rs.42,500/-.                   

                          Complainant adduced evidence by way of duly sworn his own evidence affidavit and evidence affidavit of Tejinder Singh.Complainant has placed on record copy of certificate of registration, copy of  policy schedule, copy of FIR, copy of legal notice, copy of Discharge/Follow-up card and original disability certificate.

                On the other hand,Ops adduced evidence by way of duly sworn evidence affidavit of Sikandar Khan,Legal Officer Shriram Gen,Insurance Company.

                 We have perused case file and heard L/Cs appearing for the parties at length.

                 After hearing L/Cs for the parties and perusing case file, in our opinon, the point for consideration is, as to whether or not,OP justified in repudiating the claim on the point of alleged availing of No Claim Bonus benefit by concealing the benefit availed under previous policy.

                         To be brief, allegation of complainant is that he obtained insurance policy in respect of vehicle Toyota Innova bearing registration No.JK14C-4898 got the same insured initially in the year 2014-15 with IFFCO TOKYO,thereafter,the vehicle was insured with the OP for the period w.e.f.14-01-2015 to 13-01-2016 against a premium of Rs.23,948/-with 25% NCB.That the said vehicle was again got insured w.e.f.14-01-2016 to 13-01-2017  that too with the OP and complainant was also 35% No Claim Bonus(NCB), however, during subsistence of policy, insured vehicle met with accident in the month of March,2016.Grievance of complainant is that OP did not settle the claim, on the ground that complainant availed the benefit of No Claim Bonus, while obtaining the policy, by making false representation that he did not avail benefit under previous insurance policy.

                       Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

               L/C for OP placed reliance on the judgment passed by Honble Supreme Court of India in case titled Oriental Insurance Company Ltd.V/S Munimahesh Patel reported as 2006 Legal Eagle 741 wherein it has been held as under:

          Consumer Protection-Insurance Claim-False statement in proposal form-Mentioned that insured was teacher but she accepted in actual copy of another form that she was house wife-State Commission,therefore,dismissed the appeal in view of the disputed factual position and directed the complainant-respondent to seek remedy, if any, available in any other appropriate forum—National Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done—State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission—Appeal allowed—Consumer Protection Act,1986,Section 2.

                      In support of the written version,L/C for Op submitted that the principle of good faith which is inherent in insurance was not there. The complainant is guilty of making false statement in the proposal form.

             L/C for the OP has brought on record a copy of proposal form in which complainant declared that the rate of NCB claimed by him is correct and that no claim has arisen in the expiring policy period and further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section 1 of the policy will stand forfeited.

                                In view of settled preposition of law, Insurance Company cannot be fastened with the liability, once it has been found that the complainant had availed No Claim Bonus while obtaining the policy, by making false representation that he did not avail benefit under previous insurance policy,which undoubtedly amounts to violation of terms and conditions of Insurance Policy.

                    In afore quoted back drop, complaint fails, accordingly, same is dismissed.However,in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records.

Order per President                                            (Khalil Choudhary)                               

Announced                                                           (Distt.& Sessions Judge)

09-10-2018                                                                    President

                                                                              District Consumer Forum

                                                                                      Jammu.

Agreed by                                                           

                                                                                      

Ms.Vijay Angral          

  Member                                                                                              

 

Mr.Ghulam Sarwar Chauhan

Member                                                                                  

 

 

              

                 

 

          

 

 

 

 

 

 

 

 

     After hearing L/Cs for the parties and perusing the case file, in our opinion the point for consideration purely revolves round interpretation of GR 27, therefore, for the time being, we are not adverting to other contentions of parties.

                   OP1 came up with the specific version that complainant got his vehicle in question insured from Iffco Tokyo North Block,Bahu Plaza,Jammu  for the period, ranging from 14-01-2014 to 13-01-2015,while as, complainant approached OPs office at Jammu and sought insurance of the vehicle in question for the period,14-01-2015 to 13-01-2016,therefore,vehicle was insured by OPs on the basis of declaration made by complainant that he did not claim any benefit from his previous insurer.Therefore,for proper appreciation, relevant clause of GR 27  needs proper consideration,hence,same is reproduced herein below:

                    (a)xxxxxxxxxxxxxx

                    (b)xxxxxxxxxxxxx

                   ©  xxxxxxxxxxxxx

                   (d)xxxxxxxxxxxxx

                   (e)xxxxxxxxxxxxx

         (f) In the event of the insured, transferring his insurance from one insurer to another insurer, the transferee insurer may allow the same rate of NCB which the insured would have received from the previous insurer. Evidence of the insured’s NCB entitlement either in the form of a renewal notice or a letter confirming the NCB entitlement from the previous insurer will be required for this purpose.

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’s 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 (copy of the policy enclosed).I/We further undertake that if this declaration is found to be correct, all benefits under the policy in respect of Section 1 of the Policy will stand forfeited.”

Notwithstanding the above declaration, the insurer allowing the NCB will be obliged to write to the policy issuing office of the previous insurer by recorded delivery calling for confirmation of the entitlement and rate of NCB for the particular insured and the previous insurer shall be obliged to provide the information sought within 30 days of receipt of the letter of enquiry failing which the matter will be treated as a breach of Tariff on the part of the previous insurer. Failure of the insurer granting the NCB to write to the previous insurer within 21 days after granting the cover will also constitute a breach of the Tariff.”

                (g)xxxxxxxxxxxx

               (h)xxxxxxxxxxxx

              (i)xxxxxxxxxxxxx

             (j)xxxxxxxxxxxx”

                      

                   On careful scrutiny of above reproduced clauses of GR 27,it becomes conspicuous that OPs were bound to enquire from the previous insurance company within 21 days from the date of allowing NCB,but OPs failed to produce any evidence that it had enquired from the previous insurance company about the exact position within stipulated period of 21 days.Therefore,rather OPs in our opinion, had violated GR 27 of Insurance Motor Tariff ,as OPs against the mandate of GR-27 enquired about the previous policy only when the present claim was lodged by complainant,therefore,OPs were required to confirm the status of NCB within stipulated period  and in case of false declaration, the policy could have been cancelled. As against it,OPs got enquired from the previous insurer only when the present claim was lodged,therefore,for its own fault, complainant cannot be made to suffer, who bonafidely paid premium for such unforeseen eventualities.

            Although complainant prays for indemnity to the tune of Rs.1,15,415/-,but he did not produce evidence in support of his allegation on the point of quantum of damage suffered,however,as against it,OPs produced surveyor report, whereby total loss to the insured vehicle was assessed to the tune of Rs.42,500/-,which has been assessed by duly appointed surveyor and the figures arrived at by the surveyor is not discredit by complainant through proper evidence.

                 It is needful to recall the judgment of Hon’ble Supreme Court passed Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514;

“Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.”

 

                      Admittedly, surveyor was deputed by OPs, who assessed the loss. Surveyor report is on record, whereby total loss assessed by the surveyor to the tune of Rs.42,500/- and same has not been disputed by the complainant, hence loss assessed by the surveyor is only available reasonable basis and documentary, evidence for the loss suffered by the complainant.

                     Therefore in view of the aforesaid discussion and after pursuing the record of the case, complaint filed by the complainant is accordingly allowed and we direct the OP.to pay Rs.42,500/-alongwith interest @ 7% p.a.,w.e.f.10-05-2016,(i.e.two months after surveyor report), till its realization. The complainant is also entitled to Rs.5,000/-as compensation for causing mental agony and harassment and litigation charges of Rs.5000/-.This order shall be complied with by OP within one month from date of receipt of this order. Copy of this order be provided to the parties free of charge. Complaint is accordingly disposed of and file be consigned to records after its due compilation.

 Order per President                                                 (Khalil Choudhary)                               

 

                                                                               (Distt.& Sessions Judge)

                                                                                   President

Announced                                                           District Consumer Forum

06-10-2018                                                              

                                                                                       Jammu.

Agreed by                                                                

                                                                              

Ms.Vijay Angral          

  Member                                                                                                                                                               

 

Mr.Ghulam Sarwar Chauhan

Member