OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI-03
C.C.33/2012
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
3) Md Jamatul Islam - Member
Shri Subhkaran Shyamsukha -Complainant
S/O- Late Pan Mal Shyamsukha
R/O- Near Rly gate No-7, KRC Road,
Kumarpara,Guwahati-781001
Dist-Kamrup, Assam
-VS-
1) Reliance General Insurance Co.Ltd. -Opp.party
Registered Office -Reliance Centre,19
Walchand Hirachand Marg, Ballard Estate
Mumbai-400001
2) The Branch Manager, Reliance General Insurance Co.Ltd.
5th floor,Anil Plaza,Beside IDBI Bank ,
G.S.Road,Guwahati-781005,Assam
Appearance:
Ld advocate Mr Pramod Kr Bajaj for the complainant and Ld advocate Mr Krishna Borah for the opp. party .
Date of argument - 12/07/2018
Date of judgment - 25/07/2018
JUDGMENT
This is a proceeding U/S- 12 of the Consumer Protection Act, 1986
1) The complaint filed by Shri Subhkaran Shyamsukha against Reliance General Insurance Co.Ltd. ,Mumbai and the Branch Manager, Reliance General Insurance Co.Ltd., G.S.Road, Guwahati was admitted on 07/08/2012 and notices were served on the opp. parties and the opp. parties filed joint written statement on 26/03/2013 . The complainant filed his evidence on affidavit on 08/05/2014 and he was cross examined by the ld counsel of the opp. parties; and thereafter the opp. party were allowed several chances to file evidence but they failed to file their evidence, and accordingly the stage of hearing of opp. party side evidence was closed vide our order dtd. 27/12/2017; and the day of 09/02/2018 was fixed for filing written argument by the parties ; and accordingly ld advocate Mr Pramod Kr Bajaj filed written argument on 09/02/18 for the complainant and ld advocate Mr Krishna Borah filed written argument for the opp. parties on 05/06/2018. Finally on 12/07/2018 we heard oral argument of ld advocate -Mr Pramod Kr Bajaj for the complainant and of ld advocate Mr Krishna Borah for the opp. parties and today we deliver our judgment which is as below-
2) The complainant’s case in brief is that, for renewal insurance of his vehicle bearing Registration No-NL-02-G-9628 , the representative of Opp.Party No-2 approached him and subsequently on 18/07/2011, Opp.Party No-2 issued a covernote going through xerox copy of R/C of the vehicle and previous certificate of insurance ; and on request of Opp.Party No-2 he issued a cheque vide Cheque No-227510 dtd.18/07/2011 for an amount of Rs. 22,991/- in favour of Opp.Party No-1 and Opp.Party No-2 after proper verification of all required documents and after full satisfaction issued a comprehensive insurance policy against his said vehicle vide Policy No-1505712334000308 w.e.f. 20/07/2011 to 19/07/2012 which covered own damage losses as well as 3rd party liabilities arising out of the said vehicle with an IDV(insurance declared value) of Rs.7,50,000/- only. The said vehicle , on 05/01/2012 , at about 1.00 AM met with an accident at Amlingdawa over NH-40 under Nongpoh Police Station ,Dist-Ribhoi, Meghalaya and Nongpoh traffic police branch vide GDE No-88 dtd.05/01/2012 registered a case and got the vehicle inspected through a motor vehicle inspector on 09/01/2012 who submitted report to the traffic branch , Nongpoh Police Station on 10/01/2012 where it is mentioned portion of damages vehicle which was lying at the concerned police station . He informed the Opp.Party No-2 over phone about the accident and on receipt of his information Opp.Party No-2 registered a claim in respect of the said vehicle vide Claim No-2121003708 and deputed a surveyor for the assessment of loss of the damage vehicle . After observing all formalities the police released the vehicle and he towed the said vehicle with the help of a crane to Sontosh Body and Welding Works , Lakhra,Guwahati for preparation of estimate for repairing of the damaged vehicle and on 20/01/2012 said vehicle issued an esimate of repairing with a list of damaged parts based on visual inspection subject to modification after dismantling of the said vehicle . He, then submitted estimate of repairing , police report ,MVI report , vehicle documents such as R/C, Road permit, Fitness Certificate , D/L for assessment of loss and the investigator visited several times at Sontosh Body and Welding Works and took photographs of damaged portions as well as damaged parts such as Dashboard, Driver’s Cabin, Chasis, complete Engine , Gearbox, Turbo charger ,Radiator,fuel pump, headlight,wiper blade, wiper machine,cabin jack , deshboard jack , inter cooler wiring harnese, spring leaf , head light ,coolen tank, hand brake assy, battery ,front axle etc. from time to time as and when informed by the complainant. On verbal instruction of the surveyor he started repairing works of his vehicle informing the surveyor from time to time about the progress of dismantling of the vehicle and the surveyor took photographs of the damaged portion as well as the damages parts. On 22/03/2012 , Opp.Party No-2 informed him that they are ready to settle his claim as cashlost basis and the claim amount comes only Rs.1,80,000/- and threatened him to accept the same , otherwise the claim would be repudiated , but he refused to accept the offer and ask Opp.Party No-2 to settle the claim only on repair basis. On, 29/03/2012 , Opp.Party No-2 rejected his claim on the ground that, on verification of my previous policy from my previous insurer they had come to know that, I am not eligible for any no claim bonus and as such there is wrong declaration of no claim bonus (NCB) and hence there is non disclosure of material fact, which ois not justified in the eye of law. Thereafter , on 16/05/2012, he informed Opp.Party No-2 that, repairing of the said vehicle was completed from all aspect after necessary replacement of damages parts including drivers cabin and requested Opp.Party No-2 to take photographs of the vehicle but none of the opp. partry turned up to take photographs of the repaired vehicle and he himself took the photographs of the said vehicle and he vide letter dtd.04/04/2012 addressed to Opp.Party No-2 narrating all the facts behind issuance of the said insurance policy and requested them to consider the claim. The said policy was issued by Opp.Party No-2 after verification of all required documents provided by him and the policy was actually issued in the last part of August,2011. After 8 months of issuance of the said policy Opp.Party No-2 has no authority to repudiate his claim on the ground of false undertaking of NCB which was not actually given.The vehicle met with an accident on 05/01/2012 i.e. after 5 months from the date of issue of the policy and Opp.Party No-2 did not confirm the saying even after the accident of the vehicle and were ready to settle the claim on cashloss basis as per their own will and if he would had agreed to their terms and condition then no question of the rejection of the claim would have arise. He has spent Rs.5,02,060/- in repairing the said vehicle after the accident but on submission of requisite documents the opp. party failed to settle his claim and thereby they harassed him and therefore he is entitled to get Rs.5,02,060/- as repairing cost with interest @18% per annum from the date of lodging of the claim till filing of this complaint (Rs.31,623/-) and Rs.1,00,000/- as compensation of causing harassment and mental agony from the opp. parties alongwith cost of the complaint and future interest @18% per annum.
3) The pleading of the opp. party is that, the complaint is not maintainable in law and facts ; the complaint has no cause of action for filing the present complaint. The complaint is filed basing on false stories and falsewhood ; the complaint is bad for misjoinder and nonjoinder of parties. They had never approached the complainant for insuring his vehicle with them rather the complainant himself approach them to insure his vehicle . The policy was issued to the complainant on the basis of his declaration and utmost faith . The complainant mislead them to issue policy by falsly claim that he was entitle to NO CLAIM BONUS(NCB). The significance of NCB lies in the fact that, it while the existance of NCB implies that owner of the vehicle is a habitual good driver and is a safe risk the absence of NCB gives negative story of the vehicle . This is an important consideration for taking the decision regarding acceptance of the said risk of the vehicle that has been proposed for insurance . This process of evaluation risk is call under writing and the proposer in this case the owner of the vehicle is under an obligation to state the facts regarding the policy and the insurance history of the vehicle and its owner enable the opp. party under writer to declare to accept the risk or not. In this case complainant had illegally obtained the insurance policy by misrepresenting and concealing facts of his previous policy and enjoyed benefit of NCB from them which otherwise he was not entitle to it . During continuance of previous policy with New India Assurance Co.Ltd. . There was an ownership endorsement on 19/05/2011 where in, the ownership of the said vehicle was transferred to the present complainant from M/S Freight and Carriers Pvt.Ltd. and as such as per policy terms and conditions, the complainant is not entitled to claim and enjoy the NCB.Moreover he vide his letter declaring his entitlement to NCB clearly states that in any case of payment of claims by the insurer , insurer first confirm the genuiness of this declaration of no claim bonus from the previous insurer and in that event if this declaration is found to be incorrect then all coverage under Section- 9 of the policy from the date of commencement of the policy shall stand automatically forfeited. Thus , the opp. party by virtue of the aforesaid letter and in accordance with the policy terms and condition repudiated the claim. The complainant had never submitted all necessary documents required for settlement of his claim . For non co-operation of the complainant with the opp. party in settling his claim, they came forward in settling the claim of expenditures on cashloss basis merely on the basis of good faith, on the declaration made by the complainant, which is a must for settling a claim as per law. On refusing to accept their offer they made certain enquiries and it was found from the previous insurer that there is ownership transfer of the vehicle to the complainant from M/S Freight Carrier Pvt.Ltd. ; and as such as per policy terms and condition and the letter of declaration , the complainant is not entitled to NCB which he was illegally enjoying at the relevant point of time. This was a serious breach of trust and finding no alternative they repudiated the claim on the aforesaid grounds. In normal and regular course, it is not possible and practicable to verify each and every policy unless claim arises as the declaration of insured, which forms a part of the contract which is accepted on good faith . The case of complainant was never questioned or doubted and would have never been detected unless such a claim has arisen .It is not true that they had threatened the complainant to accept their offer or otherwise his claim would be repudiated on his rejection of the offer. It is not true that the complainant spent Rs.5,02,060/- in repairing his vehicle after the accident. If at all, any money is payable to complainant, the complainant would be strictly entitled to the amount assessed by an IRDA licenced surveyor. By repudiating claim, they have not committed any irregularity or deficiency of service. They are not liable for any consequential loss under the General Exclusion No-4 of the Policy issued to the complainant . The complainant is not entitled to relief and compensation prayed for, and the complaint is liable to be dismissed.
4) We have perused the pleading of the parties as well as their evidence and it is found that both sides admitted that the complainant had approached Opp.Party No-2 for renewing the insurance policy of his vehicle bearing Registration No-NL02G9628 and Opp.Party No-2 after going through all documents provided by him i.e Registration certificate and previous insurance policy , issued cover note and requested him to pay the premium and he then issued a cheque vide No-227510 dtd.18/07/2011 for an amount of Rs.22991/- in favour of the opp. party and Opp.Party No-2 after proper verification and being fully satisfied issued comprehensive package policy against his vehicle vide Policy No-1505712334000308 w.e.f. 20/07/2011 to 19/07/2012 covering own damage and third party liability arising out of use of the said vehicle with IDV of Rs.7,50,000/- .Both side are also found admitting that on 05/01/2012 at about 1.00AM , the said vehicle met wit an accident at Amling Dowa over N.H-40 ,Ribhoi Dist., Meghalaya and the Nongpoh Traffic branch registered a case vide GDE No-88 dtd.05/01/2012, and the damaged vehicle examined by MVI of Nongpoh on 09/01/2012, who submitted his report to O/C Traffic Branch , Nongpoh P.S and the complainant filed claim before Opp.Party No-2 which was registered vide claim no-2121003708 and the opp. party deputed one surveyor to assess the loss of the vehicle and the complainant took the vehicle in his zimma and towed to Guwahati and delivered to Santosh Body and Welding Works and the latter issued estimate of repairing charge subject to modification after dismantling of the damaged vehicle and the complainant filed the estimate of repairing charge , the police report, MVI report , Registration Certificate ,Road Permit etc. to the opp. party ; and the investigator visited several times at Santosh Body and Welding Works and took photographs of the damaged portion of the vehicle but the opp. party rejected the claim on the ground “On verification of previous policy from previous insurer, they had come to know that the complainant is not eligible for any No Claim Bonus and as such there is wrong declaration of No Claim Bonus (NCB) and hence there is non disclosure of material facts .” It is found that the complainant has been taking benefit of No Claim Bonus in the renewed policy which was done with the opp. parties . The complainant states that he has not given any declaration of NCB in the renewed policy done with opp. party and his previous insurer, but the Opp.Party No-2 gave him benefit of NCB and hence Opp.Party No-2 would not have rejected his present claim on the ground of wrong declaration about NCB having Opp.Party No-2 has no authority to repudiate his claim on the ground of false undertaking of NCB . As per insurance law, it is the duty of the subsequent insurer to write to the previous insurer about the declaration of NCB before issuing renewal policy but Opp.Party No-2 had not done it; rather gave the benefit of NCB to the complainant. It is found that the complainant impliedly admits that he has not given any declaration about NCB in the proposal of the previous policy and in the renewed policy which was done with opp. party and hence we are of opinion that he is liable to return the NCB benefit which he had already taken from the opp. parties. From the case referred by Ld counsel of the complainant, United India Insurance Co.Ltd. (appellant) Vs Jindal Polubuttons Ltd. (respondent) ,2017 2 CPR , 553 , it is seen that the Hon’ble National Commission hold that if the claimant has been taking benefit of NCB without claiming the same while taking insurance policy he is entitled to payment of the amount assessed by the surveyor after making a deduction of 20% from the said amount. From this decision of the National Commission it is clear that, if any claimant of compensation for suffering loss for the accident of his vehicle, he is entitled to the actual loss after deducting 20% from the estimated loss if he has been taking NCB benefit without giving declaration of NCB benefit at the time of proposal of the policy. In the case in our hand, it is found that the complainant has been taking NCB benefit in his policy from his previous insurer and the present renewing insurer without giving declaration of NCB at the time of proposal of the policies, and hence he is entitled to actual loss after deducting 20% from it as NCB availed by him.
5) Next question is that what amount the complainant had spent in repairing his vehicle after the accident . The complainant states that he spent Rs.5,02,060/- in repairing his vehicle which the opp. party side denies. The opp. party side claim is that if the complainant would be entitled to any amount he will be entitled to amount assessed by the licensed surveyor . In the instant case the opp. party side has not adduced any evidence to prove the assessment made by the IRDA licensed surveyor while the complainant in his evidence states that Opp.Party No-2 informed him that they are ready to settle the claim on cash loss basis and the amount comes to Rs.1,80,000/- and offered the same to the complainant but complainant refused to accept the same and asked the opp. party to settle his claim on the basis of actual loss of repair.
The complainant in his evidence states that he repaired his vehicle in M/S Santosh Body and Welding Works at Lokhra where he paid Rs.5,06,020/- as repairing charge and Ext-10(1) to 10 (4) are the cash memoes and bills. We have perused the cashmemoes 10(1) to 10(4) and found that 10 (1) is the cashmemo issued by Standard Motors,Beltola of purchasing spare parts and 10(2) and 10 (3) are cashmemoes issued by DC Jain & Co , A.T.Road, Guwahati about purchasing of spare parts and 10 (4) is the money receipt amounting to Rs.1,50,000/- issued by Santosh Body and Welding Works on 15/05/2012 but the complainant has not examined the authors of the said documents to prove the genuineness of the said documents, and in such situation said documents cannot be held as actual proof of expenditure made by the complainant in repairing his vehicle. In such situation the offered amount which is Rs.1,80,000/- may be accepted as actual repairing charge which is assessed by the surveyor and to that amount , the complainant is entitled to the amount after deducting 20% from it against taking benefit of NCB without giving declaration of NCB at the time of proposal of the policy .
It is found that the opp. party side has not issued a cheque of that amount to the complainant although it is their duty to do that, and they rather rejected the claim only on the ground that, the complainant gave mis-representation about declaration of NCB . Hence , such rejection is illegal that amounts to deficiency of service towards the complainant . Therefore we hold that , the opp. party is liable to pay the complainant Rs.1,80,000/- after deducting 20% of it and also to pay interest @6% per annum from the date of filing this complaint (06/06/2012) and they are also liable to pay an amount of Rs.5,000/- as compensation for causing harassment to the complainant by illegally rejecting his claim , and they are also liable to pay atleast R.10,000/- as cost of proceeding.
6) Summing up our discussion as above the complaint against the opp. parties is allowed on contest and the opp. parties are directed to pay Rs.1,44,000 alongwith interest @6% per annum from 06/06/2012 as loss suffered by complainant in the said accident and also to pay him Rs.5,000/- for causing harassment to him as well as Rs.10,000/- as cost of the proceeding . They are directed to make payment of the awarded amount within 45days , in default, other amounts shall also carry interest at the same rate.
Given under our hands and seals on this day of 25th July ,2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain)
Member Member President
