2.      The State Commission allowed the appeal of the complainant, in the following terms--

“The respondents are directed to appoint the Surveyor to assess the loss after dismantling the vehicle of the appellant and pay the claim of the appellant as assessed by the Surveyor within one month from the receipt of the copy of the order. If it was found on dismantling the vehicle that the same is not in a repairable condition then the respondents will pay the I.D.V. value of the vehicle to the appellant after deducting the depreciation value as per the regulations of the I.R.D.A. within one month from the report of the Surveyor and the appellant will deposit the salvage of the vehicle with the respondents. If the appellant fails to deposit the salvage with the respondents then the respondents will be entitled to deduct the cost of the salvage from the claim to be paid by the respondents to the appellant.”

3.      The above decision of the State Commission needs to be viewed in the background of the fact that the vehicle in question was insured with the revision petitioners/OPs, at the time it met with the accident on the night of 23/24, June, 2009. The Insurance Company was informed promptly for an assessment of loss. However, the claim had neither been settled nor rejected till the consumer complaint was filed on 15.9.2009 and had remained undecided till 20.12.2011, when the appeal of the Complainant was decided in the impugned order.        

4.      It is seen from the order of the District Forum that the present revision petitioners/OPs were ex-parte in those proceedings. The District Forum held that it had no territorial jurisdiction to consider the complaint. But, it went on to consider the claim and held that in the absence of repudiation of the claim of the Complainant by the Insurance Company, the Complainant had no cause of action and therefore the complaint was premature. The District Forum observed that it cannot assume the role of an expert and decide whether it was a case of ‘total loss’ as claimed by the Complaint. Even the cost of repair could not be estimated by it, as the assessment of loss should have been made by a Surveyor. No such assessment was before the District Forum. 

5.      The State Commission disagreed with the District Forum, Mohali that it had no territorial jurisdiction. The Commission has observed that the proposal form produced on behalf of the respondents/OPs itself showed that it was signed at Kharar. As Kharar falls within District SAS Nagar (Mohali), the District Forum was held to have territorial jurisdiction to decide the complaint.  

6.      The State Commission has considered the written arguments advanced before it on behalf of the respondents/OPs and the evidence on behalf of the Complainants led before the District Forum. The OPs had no defence as it had chosen to be ex parte before the District Forum. Before directing the OP/Insurance Company to appoint a Surveyor to assess the loss and to pay the claim of the Complainant within a period of one month thereafter, the State Commission has arrived at following conclusions:-

a)            “The contention of the respondents/OPs regarding false declaration in the proposal form in relation to no claim bonus has been rejected. This is on the ground that as the insurance company did not file any written response before the District Forum, no opportunity was available to the appellant/Complainant to rebut the allegation of suppression of fact. 

b)             No evidence was produced in support of the claim that the complainant had been given ‘No Claim Bonus’. Neither the insurance cover note issued to the complainant nor the written arguments filed by the OPs showed what ‘No Claim Bonus’ if any, was allowed.

c)             The certificate of General Hospital, Panchkula relied upon by the OPs for their claim that at the time of the accident the driver was drunk, does not show the name of the doctor nor does it carry the seal of the hospital. The affidavit of the concerned doctor was not filed. Therefore, the claim cannot be rejected on this ground.”

7.      We have perused the records of the case, as filed by the petitioners/OPs and heard the counsel for the petitioners. The counsel argued that no claim bonus from the petitioners/OPs was sought without disclosing availment of claim from the previous insurer.  In our view this argument amounts to begging the questions. A copy of the proposal form has been placed on record by the revision petitioner. This document was also considered by the State Commission. We find that the details of the vehicle, including year of manufacture and date of registration, are mentioned in the proposal form. If a vehicle registered in May 2007, was proposed to be insured with the revision petitioners in February, 2009, it was more than obvious that the vehicle will have been insured with some other insurance company between 2007 and 2009. Moreover, the entry in the column of entitlement to ‘No Claim Bonus’ in itself amounts to a disclosure of the fact of previous insurance with others. Therefore, due diligence was required of the revision petitioners to go into details of insurance of previous two years and satisfy themselves before accepting the proposal. Having failed to perform such due diligence, it is not open to the revision petitioners to lay the blame at the door of the Complainant. As observed by the State Commission, the proposal form itself was not signed by the complainant.

8.      The revision petition also states that the complainant herself has accepted the fact of previous insurance and claim there under in her Complaint and affidavit evidence. But, there is nothing to show how exactly this can disentitle the complainant to demand ‘No Claim Bonus’.   Therefore, in our view, the State Commission has very rightly held that the OPs have not produced any evidence that the Complainant had claimed and received two claims from the previous insurers. 

9.      The arguments raised in the revision petition do not involve any issues of jurisdictional error or illegality. Only certain facts, on which findings have been given, are re-agitated as alleged material irregularities in the impugned order. Therefore, it needs to be observed here that the petitioners/OPs, having chosen to remain ex-parte before the District Forum, cannot be permitted to improve their case in the present proceedings. The State Commission has very clearly observed that in the proceedings before the District Forum:-

“Notices through speed post was issued to the respondents on 16.9.2009 but neither the notices have been received back nor anybody on behalf of the respondents appeared before the District Forum, as such, the respondents were proceeded against ex-parte.”

10.    Learned counsel for the revision petitioners cited the decision of this Commission in TATA AIG General Insurance Company Ltd. & Anr. Vs. Gulzari Singh, II (2010) CPJ 272 (NC). This decision was cited before the State Commission as well and was held to be not applicable to the facts of the present case. In this case, sought to be relied upon, the Complainant had stated in the proposal form that he would be entitled to no claim bonus. The National Insurance Company checked with the previous insurer and was informed that the Complainant had claimed and availed reimbursement under their policy. Based on this information the Insurance Company had repudiated the claim.